These terms of service (“Terms of Service”) govern the contractual relationship between SwayBrand and any User of [https://www.swaybrand.com/] (“SwayBrand Website/Web App”) and any other platform (i.e. Mobile App; collectively referred to as “SwayBrand Ecosystem”). The terms “we,” “us,” and “our” refer to SwayBrand or the Company. “You” refers to you, as a User of our SwayBrand Ecosystem or our Service.
Please read these Terms of Services carefully, and contact us if you have any questions. If applicable, additional policies made available on the SwayBrand Ecosystem are hereby incorporated by reference into these Terms of Service.
The User hereby represents and warrants to SwayBrand that he or she is at least eighteen (18) years of age or otherwise capable of entering into and performing legal agreements on his or her own behalf or on behalf of the person or entity that he or she is legally representing. If the User is not eighteen (18) years of age or older, the User represents and warrants to SwayBrand to have his/her parents’ or legal guardian’s consent to use the SwayBrand Ecosystem, subscribing for an Account or updates, or using the Services. The User may not access the SwayBrand Ecosystem or use the Services if the User does not accept these Terms of Service or if the User is not legally competent to form a binding contract, or a person who is otherwise legally prohibited from receiving or using the SwayBrand Ecosystem or the Services under applicable laws.
In order to gain full access to the SwayBrand Ecosystem, Users must create an Account. A User will be able to access its accounts by logging in by entering a User ID and a password. The Account is personal to the User and the User is solely responsible for any and all activity that occurs under the Account. Please notify SwayBrand immediately if there are any irregularities with an Account. When creating the Account, the User is required to provide accurate and complete information
The User hereby represents and warrants to not use the Services or SwayBrand Ecosystem:
- for any illegal purpose
- for any purpose other that to access the SwayBrand Ecosystem, content, or Services
- interfere with security related features of the SwayBrand Ecosystem
- collect Personal Information about Users without their and the Company’s consent
- interfere with the Company’s mission and business
The User agrees not to sell, license, distribute, copy, record, modify, publicly perform or display, transmit, publish or republish, including republication on another website, edit, adapt, create derivative works from, or otherwise make use of the Material and/or the Content that is not considered the User’s propriety. If the User, to the extent permitted by applicable statutory laws, records, downloads or otherwise copies the Material and/or Content for personal and non-commercial use, the User must retain all copyright, trademark, or other proprietary notices.
Each Account and all associated affiliations are non-transferrable and may not be sold, traded, combined, or otherwise shared with any other person. If User violates any of these limitations We may terminate your Account, at will, in our sole discretion and without limitation. Should we terminate your Account, you automatically forfeit any and all lists or information other compilations created through the Services, and you may not re-enroll or re-join under a new Account unless receive written notice that you are invited to re-join by us. If you commit fraud or falsify information in connection with your use of the Services or in connection with your SwayBrand Account or affiliations, your Account may be terminated immediately. We reserve the right to hold you liable for any and all damages that SwayBrand or our Users may suffer, to pursue legal action through all available law enforcement authorities, and to notify your Internet Service Provider of any fraudulent activities associated with you or with your use of the Services. SwayBrand reserves the right to suspend, discontinue, or modify any aspect of the Services at any time.
YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.
To the extent permitted by applicable law, the SwayBrand Ecosystem and Services are provided to the User on an “as is” basis without warranty of any kind. Should the Website, Web App, or Mobile App not be operational or the Services become unavailable, the Company shall be clear of any liability from the User. This is left general on purpose. Loss of data is included as a loss that shall be meritless against the Company.
The Company shall not be liable for the content presented on the SwayBrand Ecosystem. You acknowledge and agree that SwayBrand is not a party to any communications between brands and members, and therefore has no control over the conduct of brands, members, creators, and any other Users of the services provided by SwayBrand, and disclaims all liability in this regard to the maximum extent permitted by law. The accuracy of the information on the SwayBrand Ecosystem nor its use on third-party sites are neither endorsed by the Company nor can bestow any liability upon the Company.
In no event shall the Company be liable for a business tort, loss of anticipated revenues or profits, delays or otherwise for any type of damages, including, but not limited to, consequential or punitive in nature. Therefore, SwayBrand and its Users agree that, irrespective of the theory or cause of action upon which such damages might be based, including but not limited to strict liability, negligence, breach of contract or warranty. Moreover, SwayBrand shall not be responsible or liable in any way for any loss or damage of any kind incurred as a result, or in connection with, the User’s failure to comply with the Terms of Service.
The Company’s liability under these Terms of Service shall be limited to the amount paid by the User, if any, to the Company, the last month prior to preceding the event of loss. The User shall also indemnify, defend and hold harmless SwayBrand from and against any losses, claims, liability, damages, attorney’s fees and expenses, arising out of any third party claim due to or arising out of User’s violation of these Terms of Services or use of SwayBrand’s technology and/or equipment under unsafe conditions/circumstances. User shall assume the expense that the Company undertakes for its defense of any matter for which User is required to indemnify the Company, and agrees to cooperate with the Company’s defense of these claims.
Users shall have the unilateral right to terminate their Accounts in full or any associated Membership at any time by visiting http://www.swaybrand.com. You hereby agree to be personally liable for any and all charges incurred by your username and password until you terminate your Account or Membership as provided herein. You hereby understand and agree that if you cancel your Account or Membership, any associated access with that Membership will be removed. Users are also subject to be permanently banned from the Service for any violation of these Terms of Service or at the pure discretion of the Company.
III. Membership and Tier Fees
The Service is billed based on the billing cycle, Account chosen, and respective Membership Tier, each available to you at the time you create an Account with SwayBrand. Users shall be able to choose between Authentika™, Brand, or Management* Accounts. Each User may only create and hold one of the aforementioned Accounts on the SwayBrand Ecosystem. Each Account may have multiple Membership Tiers associated with. Users shall be able to choose the Account and respective Membership Tier that fits their specific needs as a User of the Service. All monthly memberships will automatically renew immediately upon expiration. You must cancel your monthly membership at least one calendar day before it expires in order to keep it from automatically renewing. For information regarding cancelling your membership, please see the preceding section of this Agreement. We reserve the right to change the cost of Accounts or Memberships at any time. You accept that it is your responsibility to check the current Membership Tier price either before your Account and or Membership Tier renews each month. You agree to be personally liable for any purchase(s) of credit(s) or expenditure(s) of credit(s) made using your user name and password information.
You hereby authorize the Company, its successors, assigns and their credit card and other payment method processing agents to charge your credit card (which you hereby acknowledge was entered by you into the sign-up page) to pay for your prepay fee and/or all fees to the SwayBrand Ecosystem at the agreed upon rate or such rate as may be implemented from time to time. You further authorize the Company to charge your credit card for any and all additional services or accounts or information provided by the SwayBrand Ecosystem. You agree to be personally liable for all charges incurred by you during or through the use of the SwayBrand Ecosystem. Your liability for such charges shall continue after termination of your membership.
Unless and until you notify the Company that you wish to cancel or terminate your Account and Membership to the SwayBrand Ecosystem, you hereby agree and authorize the Company and its designated agents, successors and assignees to automatically renew your Account and/or Membership Tiers to the SwayBrand Ecosystem on a continuing monthly basis and to charge your credit card (or transact other approved payment methods and facilities) to pay for the ongoing cost of your Account and/or Membership Tier. You hereby further authorize the Company or its successors, designated agents and assignees to charge your credit card (or other approved payment methods and facilities) for any and all Account and/or Membership Tier access provided to you by the SwayBrand Ecosystem. You expressly agree that the authorization to charge your credit card herein is extended to authorize any of the Company's processing agents, successors in interest or any licensees of the Company to charge your credit card for Account access to the SwayBrand Ecosystem and information you access in connection with the SwayBrand Ecosystem in accordance with these Terms and Conditions during the period that any such party processes for the Company, sells access to, or operates the SwayBrand Ecosystem.
*Management Accounts are those Accounts in which Users onboard no less than two (2) Authentikas™ to the SwayBrand Ecosystem. Upon verification and review, any and all bookings made and fulfilled through a Management Account shall be entitled to a certain apportioned percentage of transactional fees retained by SwayBrand, ranging from no less than twelve (12%) percent to no more than twenty (20%) percent. (Please Note: This excludes any agreements made between any Users and Authentik Agency™).
V. Intellectual Property Rights
All data and material on the SwayBrand Ecosystem are the intellectual property of SwayBrand, its affiliates, or its licensors. Unauthorized use of the content on the Website, Web App, or Mobile App shall constitute copyright infringement.
Any video uploaded on the SwayBrand Ecosystem by Users remains the intellectual property of the User, but User contemporaneously grants right to SwayBrand to use or exploit however at its sole discretion, through a worldwide license. Users warrant that they own the content they choose to share on the SwayBrand Ecosystem, unless or until, the content is sold or licensed to brands through SwayBrand’s platforms.
SwayBrand does not endorse any content or any opinion, recommendation, or advice expressed therein, and the Company expressly disclaims any and all liability in connection with content. SwayBrand has the right, but not the obligation, to monitor, filter, and maintain the content published on the SwayBrand Ecosystem, to determine compliance with these Terms of Service and all other applicable laws. SwayBrand has the right to refuse to post, or remove any material submitted to or posted on the Ecosystem. Users understand and agree that SwayBrand is not involved in the communications between Users and does not refer or endorse or recommend particular brands or creators. Users also acknowledge and understand that SwayBrand does not edit, modify, endorse or guarantee Content or the content communicated between Users.
Users are responsible for investigating and verifying to the extent they deem necessary the identity and credentials of other Users contacted via the Services. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular User(s) or other third party(ies) who caused you harm, and you agree not to attempt to impose liability on, or seek any legal remedy from SwayBrand, with respect to such actions or omissions.
VI. DMCA and Copyright Policy
SwayBrand voluntarily observes and complies with the United States' Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, or your intellectual property rights have been otherwise violated, please provide the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a screenshot and description of where the material that you claim is infringing is located on a Site; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. Please send the above information to the following address: firstname.lastname@example.org.
VII. Proprietary Rights and Use of Information
SwayBrand’s Services contain public information and information provided to us by third parties, which is compiled in a manner which is proprietary to us. We assert all applicable protection in the information presented through the Services. Any information shared or posted by us is protected whether or not it is identified as proprietary to us. You agree not to modify, copy, or distribute any such information in any manner whatsoever without having first received the express permission of the owner of such information. The name of the Services, and all parts of the Services, regardless of their name, are service marks of or under license to SwayBrand. No use of these marks shall be permitted except through the prior written authorization and permission of SwayBrand or the licensor of the mark. All trademarks, service marks, logos, trade names and any other proprietary designations of SwayBrand used herein are trademarks or registered trademarks of SwayBrand. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties. All rights not expressly granted herein are reserved.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS, WITH ALL FAULTS," AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION: THE AVAILABILITY, ACCURACY OF CONTENT OR MATERIALS, INFORMATION, OR SERVICE, AND THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SWAYBRAND EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SWAYBRAND MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SWAYBRAND MAKES NO WARRANTY REGARDING THE QUALITY OF THE SITE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. USERS IN STATES WHICH DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES MAY HAVE DIFFERENT LEGAL RIGHTS, WHICH MAY VARY BY JURISDICTION. UNDER NO CIRCUMSTANCES, AND UNDER NO CAUSE OF ACTION OR LEGAL THEORY, SHALL SWAYBRAND, ITS AFFILIATES, OR OTHER PARTIES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL COMMERCIAL DAMAGES RESULTING FROM ANY USE OF MATERIALS OR OTHER USE OF THE SERVICE..
YOU ACKNOWLEDGE AND AGREE TO INDEMNIFY AND HOLD SWAYBRAND HARMLESS IN CONNECTION WITH ANY CLAIM AND ANY DAMAGES OR EXPENSES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES.
IX. Limitation of Liability
NEITHER SWAYBRAND NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SWAYBRAND HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
XI. Arbitration and Governing Law
PLEASE READ THIS SECTION CAREFULLY! IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS INCLUDING YOUR RIGHT TO FILE A LAWSUIT AND TO HAVE A JURY HEAR YOUR CLAIMS.
PLEASE BE AWARE THAT DISCOVERY RIGHTS AND RIGHTS TO APPEAL ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS YOU WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However an arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Service as a court would.
As an alternative, You may bring your claim in a Cook County, Illinois, “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction. You may bring claims only on Your own behalf. Neither You nor We will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
The substantive law that shall govern any dispute is the law of the state of Illinois .
XIII. Affirmation of Entire Agreement
You hereby acknowledge and affirm that you have read this entire Agreement and that you agree to be bound by all its Terms and Conditions by clicking where indicated on the Service registration page and/or by authorizing the use of your credit or debit card for payment of such charges and fees necessary to use Service and for any other charges which you may incur. These Terms constitute the entire and exclusive understanding and agreement between SwayBrand and you regarding the Service, and supersede and replace any and all prior oral or written understandings or agreements between SwayBrand and you regarding the same.