SELLSWIPE TERMS OF SERVICE

 

Last Updated: 7-8-2018 



Please read these Terms of Service (“Terms”) carefully before using the website at www.sellswipe.com (the “Website”), the application(s) (the “App(s)”), and the services offered by SellSwipe, Inc. (“SellSwipe,” "we" or "us") via the Website and App (collectively, the “Services”).

 

These Terms, INCLUDING THE BINDING ARBITRATION PROVISION CONTAINED IN SECTION 23, the SellSwipe Privacy Policy (the “Privacy Policy”) and the SellSwipe Policies and Guidelines (the “Policies and Guidelines”) each of which are incorporated herein by reference, and any other policies and documents incorporated by reference (collectively, the “Agreement”), govern your access and use of the Services. Additional terms (including, but not limited to, the terms of social media services and third-party payment processors) may apply to particular functionalities and features related to the Services.

 

By registering as a User (as defined below), by accessing or using the Services, you (if you are using the Services on your own behalf) and the business entity that is your employer (if you are using the Services in your capacity as an employee or agent of a business entity) accept and agree to be bound and abide by the Agreement.  If you are using the Services in your capacity as an employee or agent of a business entity, you warrant that you are authorized to legally bind such entity to the Agreement. You warrant that all persons who access the Website through your internet connection are aware of these Terms.

 

If you do not want to be bound by the Agreement, you must not register as a User, or access or use the Services.

 

SellSwipe reserves the right to alter the Agreement and/or any of its component policies and documents at any time in our sole discretion. Please review the various policies and documents comprising the Agreement frequently, as all alterations are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of alterations means that you accept and agree to the alterations.

 

1.     SellSwipe Provides a Platform

 

SellSwipe provides a platform for buyers and sellers (collectively, “Users”) to connect and interact with each other. 

Using our Services, Users can: 

 

See our Policies and Guidelines  for more detailed information.  

  

2.     User Eligibility

 

The Services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information that you submit is accurate and truthful. SellSwipe may require you to provide evidence of your age; if you fail to provide satisfactory evidence, SellSwipe reserves the right to terminate your Account and your access to the Services immediately.

Notwithstanding the foregoing, SellSwipe may, in its sole discretion, refuse to offer access to or use of the Services to any person or entity and change its eligibility criteria at any time.

 

3.     Accessing the Services and Account Security

 

As a User, you will be required to register for a User account (an “Account”). When you register for an Account, you will be asked to create a username and password and to provide certain other information. You agree to (a) provide true, accurate, current and complete information when registering for an Account including, if applicable, such credit card, bank account or other method of payment information (“Payment Information”) as is required by SellSwipe for the payment of Fees (if any) incurred by you in connection with your use of the Services;  (b) authorize SellSwipe and/or its third party service providers to utilize your Payment Information to collect Fees incurred by you in connection with your use of Fee-based portions of the Services; (c) maintain and promptly update your Account to keep it true, accurate, current and complete; and (d) allow SellSwipe to contact you for the purpose of confirming some or all of your registration data and/or to conduct research and to resolve disputes, as SellSwipe may elect to do from time to time. If any of your registration data is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your Account immediately. See our Policies and Guidelines  for Account creation rules, options, limitations, and requirements.

 

Keep your username and password secure. You are fully responsible for all activity, liability and damage resulting from your failure to keep your password confidential. You agree to immediately notify SellSwipe of any unauthorized use of your password or any breach of security. You also agree that SellSwipe cannot and will not be liable for any loss or damage arising from your failure to keep your username and password secure. You agree not to provide your username and password information to any person or entity other than SellSwipe without SellSwipe’s express written permission.

 

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of the Agreement.

 

Furthermore, we reserve the right to withdraw or amend the Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to Users, including registered Users.

 

4.     SellSwipe Fees

 

No payments made by users through or associated with SellSwipe are processed by SellSwipe. SellSwipe does not retain any user payment information. Depending on the form of transaction, SellSwipe uses Apple, Stripe, or another third party to collect payment information and process the payments. For more information about Stripe and how it uses your information to facilitate these payments, please see Stripe’s website and policies.


In general, the Services are provided at no cost to Users; however, a business User may upgrade its Account and unlock additional functionality by subscribing to SellSwipe’s Premium Service and paying associated subscription fees.  In addition, a business User may take advantage of SellSwipe’s Featured Listings by paying SellSwipe’s then current Featured Listings’ fees.  

 

Current Fees are as shown on the Website and within the application and are exclusive of taxes and duties, which will be paid by the User. SellSwipe reserves the right to change Fees at any time; however, no such change will affect an existing subscription term, but will only apply to new Accounts or renewal terms. Premium Subscription Users will be notified of the changes in Fees by email, which will be charged upon renewal of the subscription.

 

Premium Subscriptions will automatically renew until cancelled as described and according to the payment schedule.  Fees are non-refundable, regardless of a User’s decision to cancel its subscription, delete its Feature Listing, or terminate its Account, or SellSwipe’s decision to terminate the User’s subscription or suspend its Account, or any disruption to the Services, whether planned, accidental or intentional, or for any other reason whatsoever. To the extent that SellSwipe chooses to offer the User a refund or discount on any services, said refunds or discounts will be offered or provided within SellSwipe’s sole discretion. In no event shall issuance of a refund or discount by SellSwipe constitute waiver of this section or any other section of this Agreement by SellSwipe.

 

5.     User Transaction Payments and Relationships

 

SellSwipe uses Stripe to process all transactions between users. For more information about Stripe and how it uses your information to facilitate these payments, please see Stripe’s website and policies.

The amount and method of payment for User transactions will be determined by the Users involved.  All transactions are consummated directly between the Users, pursuant to terms they determine. Users have the responsibility for determining which, if any, taxes apply to each transaction including, for example, sales, use, value added, and similar taxes, and it is the User’s responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities.

 

SellSwipe is not a party to User transactions, does not establish or collect the purchase price, or facilitate transactions, refunds or returns, or the resolution of disputes, in any manner. Users acknowledge that the payment of any federal, state, local, or other tax, including but not limited to state sales tax, is wholly the responsibility of the User, and SellSwipe assumes no responsibility for determining, withholding, collecting, reporting, or remitting the payment of any taxes applicable to any User transaction.

 

SellSwipe is not the owner or seller of any items listed on the Services, nor is SellSwipe a party to any agreement made between Users. SellSwipe does not guarantee the verification of any User’s identity, nor does it prequalify or validate the claims of Users. SellSwipe is not responsible for, does not assume any liability for, nor does it warrant, any items sold or purchased as a result of use of the Services.

 

All Users make their own decisions, and you acknowledge and agree that SellSwipe is not in any way arranging transactions on your behalf. You acknowledge and agree that any and all communications and correspondence, whether verbal, written or by electronic means, and any warranties or representations, made with regard to transactions between you and another User are specifically and solely between you and the other User.

 

Because we are not involved in actual transactions between Users, and we do not review the items or offers that Users post via the Service, we have no control over the accuracy of information exchanged by Users.  For example, we have no control over the legitimacy of any description or image of an item posted by a seller User, the quality or availability of any item or deal posted by a seller User, the offering price or ultimate sale price of any item posted by a seller User, or the ability or willingness of a buyer User to purchase any item(s).

 

6.     License Grant; Restrictions 

 

Subject to your compliance with the Agreement, SellSwipe hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services, solely for your lawful purposes. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SellSwipe or its licensors, suppliers or other content providers, except for the licenses and rights expressly granted herein. The rights provided to you as a User herein are solely limited to those rights described.

 

You will not (a) rent, lease, lend, sub-license, sell, resell, transfer, assign, distribute, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit or make available to any third party the Services except as expressly permitted herein; (b) copy (in whole or in part), adapt, modify, translate, abridge, or prepare derivative works based upon the Services; (c) create Internet “links” to the Services; (d) reverse engineer, disassemble, decompile, decode, or adapt the Services; (e) bypass or breach any security protections or measures utilized by the Services; (f) use the Services in any manner or for any person that infringes, misappropriates, or otherwise violates any Intellectual Property Right or any other right of any person, or that violates any applicable law; (g) access the Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services, or (iv) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation or performance of the Services; (h) directly or indirectly, engage in any acts inconsistent with the principles of copyright protection and fair use, as codified in 17 U.S.C. Sections 106-110, without obtaining the express written consent of SellSwipe or the copyright owner; or (g) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Services, warranties, disclaimers, or any Intellectual Property rights, proprietary rights or other symbols, notices, or marks relating to the Services.

 

7.     Additional Terms Relating to Use of the App

 

Your use of the App is subject to the following additional terms (the “App Terms”). You understand and agree that (a) your use of the App is conditioned upon and considered to be your acceptance of these App Terms; (b) the App contains copyrighted material, trade secrets, and other proprietary materials of SellSwipe and its licensors; and (c) in order to protect those proprietary materials, except as expressly permitted by applicable law, neither you nor a third party acting on your behalf will: (i) decompile, disassemble or reverse engineer the App; (ii) modify or create derivative works of the App; (iii) use the App in any manner to provide service bureau, commercial time-sharing or other computer services to third parties; (iv) transmit the App or provide its functionality, in whole or in part, over the Internet or other network (except as expressly permitted above); (v) sell, distribute, rent, lease, sublicense or otherwise transfer the App to a third party; or (v) use components of the App to run applications not running on the App.

 

You hereby agree that you will: (a) only use the App to access and use the Services; (b) not authorize any third party to access or use the Services on your behalf using any automated process such as a BOT, a spider or periodic caching of information stored by the Services on your behalf; (c) not use any software or hardware that reduces the number of users directly accessing or using the Services (sometimes called ‘multiplexing’ or ‘pooling’ software or hardware); (d) permit us to send and deliver updates to you as part of your use of the App; and (f) allow the App to automatically download and install updates from time to time, which are designed to improve, enhance and further develop the App and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.

 

You may only access the Services using authorized means. It is your responsibility to ensure that you download the correct App for your device. SellSwipe is not liable if you do not have a compatible device or if you have downloaded the wrong version of the App or for any damage caused to your device. SellSwipe reserves the right to terminate the Agreement and the App Terms should you use the Services with an unauthorized device.

 

8.     Intellectual Property Ownership

 

SellSwipe alone (and its licensors, where applicable) will own all right, title and interest, including all related intellectual property rights, in and to the Services. The Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, or any intellectual property rights owned by SellSwipe.

 

Unless otherwise indicated, the Services and all content, materials, information, functionality and other materials displayed, performed, contained or available on or through the Services including, without limitation, the SellSwipe name and trademark, and the product names associated with the Services, and all designs, text, graphics, pictures, information, data, sound files, images, illustrations, software, other files, and the selection and arrangement thereof are the proprietary property of SellSwipe or its affiliates or licensors, and are protected by U.S. and international copyright laws and other intellectual property rights laws.

 

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website or App, except as follows:

You must not:

 

9.     Feedback

 

SellSwipe considers any unsolicited suggestions, ideas, proposals or other material submitted to it by Users via the Services (“Feedback”) to be non-confidential and non-proprietary, and SellSwipe will not be liable for the disclosure or use of any Feedback. If, at SellSwipe’s request, any User sends Feedback to improve the Services, SellSwipe will also consider that Feedback to be non-confidential and non-proprietary and SellSwipe will not be liable for use or disclosure of the Feedback. Any communication by you to SellSwipe is subject to the Agreement. You hereby grant and agree to grant to SellSwipe, under all of your rights in the Feedback, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit Feedback for any purpose, commercial or otherwise, without compensation or accounting to you and without further recourse by you. Further, you agree not to submit any feedback that is defamatory, illegal, offensive or otherwise violates any right of any third party, or breaches any agreement between you and any third party.

 

10.   Prohibited Activities 

 

You may use the Services only for lawful purposes and in accordance with the Agreement. You agree not to use the Services:

 

Additionally, you agree not to:

 

11.   User Contributions

 

The Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, User to User messaging, and other interactive features (collectively, "Interactive Services") that allow Users to post, submit, publish, display or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Contributions") on or through the Services. You are responsible for your use of the Services and for any User Contributions you provide, including compliance with applicable laws, rules, and regulations. You are also fully responsible for the legality, reliability, accuracy, and appropriateness of the User Contributions you choose to post. You should only provide User Contributions that you are comfortable sharing with others.

 

ALL USER CONTRIBUTIONS MUST COMPLY WITH THE CONTENT STANDARDS SET OUT IN THESE TERMS AND IN OUR POLICIES 

 

Any use or reliance on any User Contributions or material posted via the Services or obtained by you through the Services is at your own risk. SellSwipe does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any User Contributions or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you might be exposed to User Contributions that could be or you may consider to be offensive, harmful, inaccurate, indecent, in poor taste, or otherwise inappropriate or, in some cases, postings that have been mislabeled or are otherwise deceptive. All User Contributions are the sole responsibility of the User who originated such User Contributions. We may not monitor or control the User Contributions posted via the Services and we do not accept responsibility for same.

 

Any User Contribution you post to the Services will be considered non-confidential and non-proprietary. By submitting, posting, or displaying User Contribution on or through the Services, you grant SellSwipe a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Contributions in any and all media or distribution methods (now known or later developed). This license authorizes us to make your User Contributions available to other Users and third parties. You agree that this license includes the right for SellSwipe to provide, promote, and improve the Services and to make User Contributions submitted to or through the Services available to other companies, organizations, or individuals for syndication, broadcast, distribution, promotion, or publication of such User Contributions on other media and services, subject to our terms and conditions for such User Contribution use. Such additional uses by SellSwipe, or other companies, organizations, or individuals, may be made with no compensation paid to you with respect to the User Contributions that you submit, post, transmit or otherwise make available through the Services. You understand that we may modify or adapt the User Contributions as it is distributed, syndicated, published, or broadcast by us or our partners and/or make changes to said User Contributions in order to adapt the content to different forms of media.

 

When posting User Content, you represent and warrant that:

 

SellSwipe respects the intellectual property rights of others and requires its Users to do the same. SellSwipe reserves the right to remove User Contributions alleged to be infringing without prior notice, at its sole discretion, and without liability to you. SellSwipe will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us as provided in our Copyright Policy . If you believe that your User Contribution has been copied in a way that constitutes copyright infringement, please report using the procedure provided in our Copyright Policy’s Copyright Reporting Procedure .

 

12.   Content Standards

 

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:

 

Additional standards are specified in our Policies and Guidelines . 

 

13.   Monitoring and Enforcement; Termination 

 

We have the right to:

 

We do not undertake to review all material before it is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

 

            Terminating the Agreement

 

You may terminate your license access or use the Services by deactivating your Account and discontinuing your use of the Services at any time. For more details on how to close your Account, pleaseemail us at legal@sellswipe.com. We may suspend or terminate your account or restrict or limit the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated the terms of the Agreement; (ii) you create risk or potential legal exposure for SellSwipe; or (iii) our provision of Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account. In all such cases, the Terms shall terminate including, without limitation, your license to use the Services, except that the following sections shall continue to apply: 8, 9, 16, 17, 18, 19, 20, 22, 23, and 24.

 

14.   Third Party Services and Content

 

In using the Services, you may view content, utilize services, or otherwise interact with content and services provided by third parties including, but not limited to, links and/or connections to websites, applications or services of such parties (“Third-Party Content”). SellSwipe does not control, endorse or adopt any Third-Party Content and you acknowledge and agree that SellSwipe will have no responsibility for any Third Party Content including ,without limitation, material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. In addition, your business or other dealings or correspondence with such third parties are solely between you and the third parties. SellSwipe is not responsible or liable for any damage or loss of any sort caused, or alleged to be caused, by or in connection with any such dealings, including the delivery, quality, safety, legality or any other aspect of any good or services that you may purchase or sell from or to a third party.

 

15.   Changes to the Services

 

We may update the content on the Services from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Services may be out of date at any given time, and we are under no obligation to update such material.

 

16.   Privacy

 

All information we collect via the Services is subject to our Privacy Policy. By using the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

 

17.   No Guarantee; Assumption of Risk

 

SellSwipe does not guarantee continuous, uninterrupted access to the Services, and operation of the Services may be interfered with by numerous factors outside SellSwipe’s control.

 

You acknowledge and agree that there are risks associated with utilizing an Internet-based marketplace for the sale of goods including, but not limited to, the risk of failure of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your Account. You acknowledge and agree that SellSwipe will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Services, however caused.

 

SellSwipe takes no responsibility for and will not be liable for any losses, damages or claims arising from the use of the Services including, but not limited to, any losses, damages or claims arising from (a) server failure or data loss, (b) forgotten passwords, or (c) “phishing,” spam, viruses, third-party attacks or any other unauthorized third-party activities.

 

18.   No Warranty

 

SellSwipe is not directly involved in any transactions between Users. As a result, SellSwipe has no control over the quality of the goods or services provided by sellers, the truth or accuracy of information provided by Users via the Services, or the ability of Users to complete transactions in a timely manner, if at all. SellSwipe is not responsible or liable for any goods or services provided by sellers or for User Contributions posted on the Services. Use of the Services is at User’s own risk.

 

SellSwipe uses third party payment services (i.e., Stripe, Apple, and others) to process all payments for fees, user transactions or otherwise. SellSwipe will not be liable for any deficiencies in the accuracy, completeness, availability, privacy, security or timeliness of payment information sent via such third party payment service or any other, or for damages of any kind arising from the use of such third party service including, but not limited to, direct, indirect, incidental, consequential, exemplary, and punitive damages. SellSwipe retains the right to change third party payment service providers at any time.

 

SELLSWIPE, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES PROVIDE THE SERVICES “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. SELLSWIPE, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, SELLSWIPE DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF INFORMATION OBTAINED VIA THE SERVICES. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER USER, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

19.   Limitation of Liability

 

IN NO EVENT WILL SELLSWIPE, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, OR INCIDENTAL, ARISING OUT OF OR RELATING TO YOUR CONDUCT OR ANYONE ELSE’S CONDUCT IN CONNECTION WITH THE USE OF THE SERVICES OR THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

20.   Indemnity

 

You agree to defend, indemnify and hold harmless SellSwipe, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of the Agreement or your use of the Services including, but not limited to, your User Contributions, any use of the Service’s content, services and products other than as expressly authorized in the Agreement or your use of any information obtained from the Services.

 

You hereby agree to indemnify and hold harmless SellSwipe (its officers, directors, agents, and employees) from any damages or claims arising from your use of the Services, including any damages or claims resulting from false, erroneous or misleading information that you submit, post, upload, and display on the Services. 

 

 

21.   Disputes Between Users

 

SellSwipe is not responsible for your interactions with other Users. Any dispute between you and another User must be resolved between yourselves, and you hereby hold SellSwipe harmless with respect to any such disputes. SellSwipe reserves the right, but has no obligation, to monitor disputes between Users.

 

22.   Disputes with SellSwipe 

 

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.

 

Unless you opt-out as described in this section and except for certain types of disputes described below in this section, you agree that any legal or equitable claim arising out of or relating in any way to your use of the Services or the Agreement, and the formation, validity, enforceability, scope, or applicability of the Agreement, including this Section 23 (referred to as a “Claim”) will be resolved binding, individual arbitration, and you waive your right to participate in a class action lawsuit or class-wide arbitration.

 

1.     Binding Arbitration. Except for any Claims arising out of or related to a violation of Section 10 or a Claim in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and SellSwipe agree (a) to waive our respective rights to have Claims resolved in a court, and (b) to waive our respective rights to a jury trial. Instead, you and SellSwipe agree to arbitrate Claims through binding arbitration (which is the referral of a Claim to one or more persons charged with reviewing the Claim and making a final and binding determination to resolve it instead of having the Claim decided by a judge or jury in court) applying Delaware law.

2.     No Class Arbitrations, Class Actions or Representative Actions. You and SellSwipe agree that any Claim arising out of or related to the Agreement or the Services is personal to you and SellSwipe and that such Claim will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and SellSwipe agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Claim as a representative of another individual or group of individuals. Further, you and SellSwipe agree that a Claim cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

3.     Federal Arbitration Act. You and SellSwipe agree that the Agreement affects interstate commerce and that the enforceability of this Section 23 will be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

4.     Notice; Informal Claim Resolution. You and SellSwipe agree that each party will notify the other party in writing of any Claim within thirty (30) days of the date the claim is discovered or should have been discovered, so that the parties can attempt in good faith to resolve the Claim informally. Notice to SellSwipe will be sent by certified mail or courier to SellSwipe, Inc., Attn: [name], [address]. Your notice must include (a) your name, residence address, telephone number, the email address you use for your Account, and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Claim, and (c) the specific relief that you are seeking. SellSwipe’s notice to you will be sent to the email address you used to register for your Account, and will include (i) our name, business address, telephone number and an email address at which we can be contacted with respect to the Claim, (ii) a description in reasonable detail of the nature or basis of the Claim, and (iii) the specific relief that we are seeking. If you and SellSwipe cannot agree how to resolve the Claim within ninety (90) days after notice is received by the applicable party, then either you or SellSwipe may, as appropriate and in accordance with this section, commence an arbitration proceeding, or to the extent specifically provided for in Section 23(A), file a claim in court.

5.     Process. Except for Claims arising out of or related to a violation of Section 10 [insert hyperlink]or Claims in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and SellSwipe agree that any Claim must be commenced or filed within one (1) year of the date the Claim arose, or it will be permanently barred (which means that you and SellSwipe will no longer have the right to assert such Claim). Some jurisdictions do not allow certain limitations of liability, such as contracted prescriptive periods, so this limitation of liability may not apply to You.

 

You and SellSwipe agree that (a) any arbitration will occur in Baton Rouge, Louisiana, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Louisiana and the United States, respectively, sitting in Baton Rouge, Louisiana have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Claim in the small claims court located in the county of your billing address if the Claim meets the requirements to be heard in small claims court.

 

1.     Authority of the Arbitrator. As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

2.     Rules of JAMS. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

3.     Costs of Arbitration. The parties shall each bear their own costs and attorney’s fees in any arbitration proceeding, provided, however, that the arbitrator shall have the authority to require either party to pay the costs and attorney’s fees of the other party to the extent permitted under applicable federal or state law, as part of any remedy that may be ordered.

4.     Severability. If any term, clause or provision of this Section 23 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 23 will remain valid and enforceable. Further, the waivers set forth in Section 23(B) are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.

 

Opt-Out Right.

You may opt out of this agreement to arbitrate.  If you do so, neither you nor SellSwipe can require the other to participate in an arbitration proceeding. To opt out, you must notify SellSwipe in writing within 60 days of the date that you created your User Account. You must use this address to opt out:

 

SellSwipe, Inc., Attn: Arbitration Opt Out, 7117 Florida Blvd. Baton Rouge, LA 70806 legal@sellswipe.com 

 

You must include your name and residence address, the email address that you use for your Account, and a clear statement that you want to opt out of this arbitration agreement. By opting out of binding arbitration, you are agreeing to resolve Claims in accordance with those portions of Section 22 that pertain to litigation in Court.

 

23.   Governing Law and Jurisdiction

 

All matters relating to the Services and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), will be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

 

Any legal suit, action or proceeding arising out of, or related to, the Agreement or the Services will be instituted exclusively in the federal courts of the United States or the courts of the State of Louisiana, applying Delaware law, giving no effect to any choice or conflict of law provision. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

 

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SUCH AS CONTRACTED PRESCRIPTIVE PERIODS, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.

 

Use in the United States

 

At present, the Services are designed for use in the United States alone and by users and devices located within the United States alone. It is a violation of this Agreement to provide or make available the Services or register a User Account for any person or device located outside of the United States. 

 

24.   Miscellaneous

 

1.     Entire Agreement. The Terms, our Privacy Policy, our Policies and Guidelines, and any other policies and documents incorporated by reference, constitute the sole and entire agreement between you and SellSwipe with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services.

2.     Severability. If any provision of the Agreement is held unenforceable, then the provision will be modified to reflect the parties’ intention. All remaining provisions of the Agreement will remain in full force and effect.

3.     WaiverOur failure or delay in exercising any right, power or privilege under the Agreement will not operate as a waiver thereof.

4.     Relationship. You and SellSwipe are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Agreement.

5.     Assignment. You may not assign or transfer any of your rights or obligations under the Agreement without SellSwipe’s prior written consent, including by operation of law or in connection with any change of control. SellSwipe may assign or transfer any or all of its rights under the Agreement, in whole or in part, without obtaining your consent or approval.

6.     Headings. Headings of sections are for convenience only and will not be used to limit or construe such sections.

7.     Survival. Sections 19 (No Warranty), 20 (Limitation of Liability), 21 (Indemnity), 23 (Disputes with SellSwipe), 24 (Governing Law; Venue), this Section 25 (Miscellaneous), and any other term that, by its nature, should survive, will survive any termination or expiration of these Terms.

8.     Notices. Unless otherwise specified herein, all notices will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to [info@SellSwipe.com].

 

Your Comments and Concerns

 

The Services are provided by SellSwipe, Inc., 7117 Florida Blvd Baton Rouge, LA 70806.

All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy in the manner and by the means set forth therein.

All other feedback, comments, requests for technical support and other communications relating to the Services should be directed to: support@SellSwipe.com