TERMS OF SERVICE
Effective Date: June 14, 2022
Welcome to Swaypay. These Terms of Service set forth the terms and conditions that apply to your access and use of our website (www.swaypayit.com), software applications, web application, and other online services (collectively, the “Services”) provided by Swaypay.
1. Basic Terms
Swaypay provides a service that enables users to receive discounts on goods and services in exchange for promotional social media posts. In order to receive the discounts, Swaypay users must satisfy their full obligations provided on the How it Works agreement. If a Swaypay user fails to fulfill their obligations, they expressly authorize Swaypay to charge the full price of goods and services received by the user to the payment method on file. You are solely responsible for verifying that your posts satisfy: (i) the Swaypay posting requirements; (ii) posting or other requirements of the social media provider; and (iii) sponsorship disclosure requirements under applicable law, including without limitation, the Federal Trade Commission’s (“FTC”) Guides Concerning Endorsement and Testimonials (“Endorsement Guidelines”), which can be found here: FTC Endorsement Guidelines. Further information and guidance regarding disclosures, can be found here: Disclosures 101 for Social Media Influencers.. Swaypay will not be responsible for any damages or losses that occur related to your failure to comply with your obligations under the Agreement.
Swaypay makes no endorsements, representations or warranties with regards to the products or services offered by any third-party merchant on which you may receive a Swaypay discount (“Third-Party Products”). You expressly agree that Swaypay has no liability with regard to Third-Party Products and you will not name Swaypay as a party in any dispute you have with the provider of Third-Party Products (“Merchants”) or otherwise related to Third-Party Products.
You may only use the Services in accordance with applicable law and must be at least of the age of legal majority where you live (which is currently 18 years old in most states) to use our Services, or you must be at least 13 years old and have the permission of your parent or guardian who must agree to these terms on your behalf. You are responsible for your use of the Services and for any consequences thereof. You may use the Services only if you can form a binding contract with Swaypay and are not a person barred from accessing the Services under the laws of the United States or other applicable jurisdiction.
The Services are always evolving and the form and nature of the Services may change from time to time without prior notice to you. In addition, Swaypay may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.
The Services may include advertisements, which may be targeted to the content or information on the Services, queries made through the Services, or other information. The types and extent of advertising on the Services are subject to change. In consideration for Swaypay granting you access to and use of the Services, you agree that Swaypay, third party providers and partners may place such advertising on the Services or in connection with the display of content or information from the Services whether submitted by you or others.
3. Passwords and Account Requirements
You are responsible for safeguarding the password or credentials that you use to access the Services and for any activities or actions under your account. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account and with other accounts that you may connect to your Swaypay account. Swaypay cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You agree to notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
You expressly represent that any information you provide us is accurate, complete and truthful.
Your registration must be done using your real name. Each registration is for your personal use only and not on behalf of any other person or entity. You may not assign or transfer your account, account access or other use of the Services. We do not permit (a) any other person using the registered sections under your name; or (b) access through a single name being made available to multiple users on a network. You are responsible for preventing such unauthorized use.
By creating an account, you expressly authorize Swaypay, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include without limitation requiring you to provide your date of birth and/or mobile telephone number, asking you for further information, or verifying your information against third party databases or through other sources. Swaypay reserves the right to close, suspend, or limit access to your account and/or the Services in the event that, in our sole discretion, (a) we are unable to obtain or verify identity or eligibility; (b) the security of your account has been compromised; or (c) your account has been used in, or seems to have been used in, a nefarious manner.
If your credit card account number changes or your credit card expiration date changes, we may acquire that information from our financial services partner and update your account.
4. Swaypay Posts
Please be aware that Swaypay does not verify the accuracy any information available on the Services or related to Third-Party Products. Any use or reliance on any information you obtained through the Services is at your own risk. You understand that by using the Services, you may be exposed to content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Swaypay be liable in any way for any content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
BY UPLOADING A SOCIAL MEDIA POST IN ACCORDANCE WITH THE SWAYPAY SERVICES (“POST”), YOU EXPRESSLY ACKNOWLEDGE THAT SWAYPAY IS AND WILL BE THE SOLE AND EXCLUSIVE OWNER OF ALL RIGHT, TITLE AND INTEREST IN AND TO THE POST, INCLUDING ALL COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS THEREIN. Swaypay will own each Post as a work made for hire as defined in Section 101 of the Copyright Act of 1976. To the extent any Post does not qualify as, or otherwise fails to be, work made for hire, you hereby (a) assign, transfer, and otherwise convey to us, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to the Posts, including all copyrights and other intellectual property rights in them; and (b) irrevocably waive any and all claims you may now or hereafter have in any jurisdiction to so-called "moral rights" with respect to the Posts. We hereby grant you a limited license to use the Posts solely for the purposes of meeting your obligations under these Terms of Service. You hereby grant to Swaypay, our Affiliated Parties, and each of our respective direct and indirect successors, licensees, and assigns the right to use your name, image, likeness, and biographical, professional, and other identifying information (including information you provide to us and any other information about you that is publicly available) (collectively, "Likeness") in connection with the Posts and any derivative works we make from the Posts, including to advertise and promote the same or any product/service that features or includes the Posts or a derivative work of a Post, in whole or in part. You waive the right to inspect or approve any use of your Likeness as contemplated in these Terms of Service.
You agree not to include in any Post:
5. Third-Party Products and Merchants
A. The purchase of any Third-Party Products is governed by any terms and conditions offered by that Merchant or any contract between you and the Merchant. In some circumstances, Swaypay may receive payments from you on behalf of Merchants as an independent contractor. You must contact the Merchant to resolve any issues you have with respect to Third-Party Products, including without limitation any issues relating to shipping and delivery, product warranty, product return, refund, exchange, and the terms of any agreements you entered into with the merchant in connection with your order or purchase. You acknowledge and agree that Swaypay is not responsible or any of these.
B. You also acknowledge and agree that Swaypay is also not in any way responsible for the quality, usability, or any other element of Third-Party Products. You acknowledge that Swaypay does not endorse any Third-Party Products and does not warrant the accuracy or reliability of any information or marketing messages contained in any websites linked to the Swaypay Services.
C. If you have dispute rights through your credit card issuer, any disputes filed with your credit card issuer shall be between you and the issuer, and Swaypay shall not be held liable for such disputes.
D. You agree that we can make information about your purchase available to Merchants through a Merchant dashboard and/or our API, each of which will requires the Merchant to pass certain authentication measures. If your Merchant operates through a third-party platform, such as Shopify, your purchase information may be shared with that platform through the Merchant.
6. Swaypay Rights
All right, title, and interest in and to the Services and any content available on the Services are and will remain the exclusive property of Swaypay and its licensors. The Services and its content are protected by copyright, trademark, and other laws of both the United States and foreign countries. Swaypay reserves all rights not expressly granted in these Terms. You acknowledge and agree that any feedback, comments, or suggestions you may provide regarding Swaypay, or the Services are entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
7. Restrictions and Prohibitions on Use
We reserve the right at all times (but will not have an obligation) to suspend and or terminate users or reclaim usernames without liability to you.
8. Copyright Policy
We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Service infringes on the copyright or other intellectual property rights ("Infringement") of any person or entity.
If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to firstname.lastname@example.org, with the subject line: "Copyright Infringement" and include in your claim a detailed description of the alleged Infringement as detailed below, under "DMCA Notice and Procedure for Copyright Infringement Claims"
You may be held accountable for damages (including costs and attorneys' fees) for misrepresentation or bad-faith claims on the infringement of any Content found on and/or through the Service on your copyright.
DMCA Notice and Procedure for Copyright Infringement Claims
You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
You can contact our Copyright Agent via email at email@example.com.
9. Ending These Terms
The Terms will continue to apply until terminated by either you or Swaypay as follows.
You may end your legal agreement with Swaypay at any time for any reason by deactivating your accounts and discontinuing your use of the Services. In order to deactivate your account, please contact us at firstname.lastname@example.org. Please note that deactivating your account may not relieve you of any payment obligations you have pursuant to other agreement with Swaypay.
We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the 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 through the Services 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 those Sections you would expect to survive termination.
Nothing in this section shall affect Swaypays’ rights to change, limit or stop the provision of the Services without prior notice, as provided above.
10. Disclaimers, Limitations of Liability and Indemnity
Please read this section carefully since it limits the liability of Swaypay its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Swaypay Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
A. The Services are Available “AS-IS”
Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, THE SWAYPAY ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
The Swaypay Entities make no warranty and disclaim all responsibility and liability for: (i) any actions of Swaypay users or contributors or Merchants; (ii) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (iii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any content; (iv) the deletion of, or the failure to store or to transmit, any content and other communications maintained by the Services; (v) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis; (vi) any advice or information you receive through the Services; and (vii) any injuries or harm you or a third party incurs as a result of information or advice received through the Services. No advice or information, whether oral or written, obtained from the Swaypay Entities or through the Services, will create any warranty not expressly made herein.
B. Third-Party Content
Third-party content may appear on the Services or may be accessible via links from the Services. We are not responsible for and assume no liability for any mistakes, misstatements of law, defamation, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations or any other form of content on the Services. You understand that the information and opinions in the third-party content represent solely the thoughts of the author and are neither endorsed by nor do they necessarily reflect our belief.
To the extent not prohibited by law, you expressly agree to indemnify and hold harmless the Swaypay Entities from and against any and all liabilities, expenses, damages and costs, including, but not limited to, reasonable attorneys’ fees and costs, related to all third party claims, charges and investigations related to (1) your failure to comply with the Terms;you’re your Posts; (3) your interactions with any other Swaypay user or Merchant; (4) any claim by a third party or investigation by the government or government agency that your use of the Services or your Posts violates the rights of a third party, including without limitation, intellectual property rights, contractual rights, privacy rights, sponsorship disclaimers or rights to publicity; and (5) any activity in which you engage on or through the Services.
D. Limitations on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SWAYPAY ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SWAYPAY ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID SWAYPAY, IF ANY, IN THE PAST SIX MONTHS FOR ACCESS TO THE SERVICES GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE SWAYPAY ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. Dispute Resolution and Arbitration
A. Merchants and Third-Party Products
Any issues or disputes that arise in connection with your purchase or attempted purchase of Third-Party Products from Merchants must be handled in accordance with such Merchant’s dispute resolution processes. Under no circumstances will Swaypay be responsible or liable for any disputes between you and Merchants arising in connection with your use of their services, nor will Swaypay be obligated to provide assistance or intervention in connection with such disputes.
B. Class Action Waiver and Agreement to Arbitrate
You agree that you are required to resolve any claim that you may have against Swaypay on an individual basis in arbitration, as set forth in this Section (referred to herein as the “Arbitration Agreement”). This will preclude you from bringing any class, collective, or representative action against Swaypay, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Swaypay by someone else. YOU ACKNOWLEDGE AND AGREE THAT YOU AND SWAYPAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Unless both you and Swaypay otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
C. Arbitration Procedure
The arbitration will be administered by JAMS, Inc. (“JAMS’) pursuant to its Streamlined Arbitration Rules and Procedures (the “Rules”). The Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/.
D. Controlling Law and Venue
These Terms, the Agreement and any action related thereto will be governed by the laws of the state of Illinois without regard to or application of its conflict of law provisions or your state or country of residence.
12. General Terms
If any provision of these Terms of Service is found invalid or unenforceable pursuant to judicial decision, the remainder of these Terms of Service will remain valid and enforceable according to its terms.
A. Force Majeure
Swaypay will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Swaypay’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action, in so far as such an event prevents or delays Swaypay in fulfilling its obligations hereunder.
These Terms of Service may be amended at any time by us without specific notice to you. The latest Terms of Service will be posted on our website, and you should review the Terms of Service prior to using the Services, so you are aware of any changes. Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. If you do not wish to be bound by any such revisions to the Terms, you must end these Terms with us as set forth in Section 9 above. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
If you have any questions or concerns about these Terms of Service, please email us at email@example.com.