The Golf Tracer Terms of Service
By accessing or using any applications powered by Swing by Swing Golf, Inc. (“Swing by Swing”), including any software applications (each, an “App”) or services (“Services”) provided by Swing by Swing – makers of the app The Golf Tracer (“App”), you agree to be bound by these Terms of Service (“Terms”). To make these Terms easier to read, Swing by Swing’s services and the App are collectively called the “Service,” and Swing by Swing shall collectively be referred to herein as “we” and/or “us.” If you are accessing and using the Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. These Terms affect your legal rights and obligations. If you do not agree to be bound by all of these Terms, you may not access or use the Service.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU, ON THE ONE HAND, AND Swing by Swing, ON THE OTHER HAND, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- You must be at least 18 years old and not barred from using the Service under applicable law.
- If you want to use certain features of the Service you’ll have to create a user account (“App Account”). You can do this providing access credentials either in the form of an email address and password or by authentication using your account with certain third-party social networking services such as Facebook (an “SNS Account”). If you choose the SNS Account option we’ll create your App Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
- For purposes of these Terms: (i) “Content”means text, graphics, images, photographs, GIF’s, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Service; and (ii) “User Content”means any Content that App Account holders (including you) provide to be made available through the Service, including, without limitation, profile, username, comments and posts. Content includes without limitation User Content.
- You agree not to post upload, publish, submit or transmit any User Content that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vii) promotes illegal or harmful activities or substances; or (viii) is sexually explicit or sexually suggestive.
- You are responsible for any activity that occurs through your App Account and you agree you will not sell, transfer, license or assign your App Account, followers, username, or any App Account rights. With the exception of people or businesses that are expressly authorized to create Accounts on behalf of their employers or clients, Swing by Swing prohibits the creation of and you agree that you will not create an App Account for anyone other than yourself. You also represent that all information you provide or provided to Swing by Swing upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.
- You agree that you will not solicit, collect or use the login credentials of other users on the App.
- You are responsible for keeping your password secret and secure, and you’ll notify us immediately of any unauthorized use of your App Account.
- You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Service, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
- You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your User Content, including but not limited to, copyright laws.
- You are solely responsible for your conduct and any User Content that you submit, post or display on or via the Service.
- You must not change, modify, adapt or alter the Service.
- You must not access Swing by Swing’ private API by means other than those permitted by Swing by Swing.
- You must not attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content.
- You must not use, display, mirror or frame the Service or any individual element within the Service, Swing by Swing’s trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Swing by Swing’s express written consent.
- You must not access, tamper with, or use non-public areas of the Service, Swing by Swing’s computer systems, or the technical delivery systems of Swing by Swing’s providers.
- You must not attempt to probe, scan or test the vulnerability of any Swing by Swing system or network or breach any security or authentication measures.
- You must not avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Swing by Swing or any of Swing by Swing’s providers or any other third party (including another user) to protect the Service or Content.
- You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (aka “spam”) to any App users.
- You must not use domain names or web URLs in your username.
- You must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any App page is rendered or displayed in a user’s browser or device.
- You must not create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
- You must not attempt to restrict another user from using or enjoying the Service and you must not encourage or facilitate violations of these Terms.
- Violation of these Terms may, in Swing by Swing’s sole discretion, result in termination of your App Account. You understand and agree that Swing by Swing cannot and will not be responsible for the User Content posted on the Service and you use the Service at your own risk. If you violate the letter or spirit of these Terms, or otherwise create risk or possible legal exposure for Swing by Swing, we can stop providing all or part of the Service to you.
- We reserve the right to modify, discontinue, or terminate the Service or your access to the Service for any reason, without notice, at any time, and without any liability or obligation to you.
- You can deactivate your App Account by contacting us at firstname.lastname@example.org. If we terminate your access to the Service or you contact us to deactivate your account, your User Content will no longer be accessible through your App Account, but your Content may persist and appear within the Service.
- Upon termination, all licenses and other rights granted to you in these Terms will immediately cease, except that the following sections will survive: I(3)(5)(10), II(6)(8)(10)(11)(14), III, V(1)(2)(3)(4)(5)(6)(8)(9)(11)(12), VI, VII, VIII, IX, X, XI, XII, XIII, XIV and XV.
- We reserve the right, in our sole discretion, to change these Terms (“Updated Terms”) from time to time. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. If you don’t agree to be bound by the Updated Terms, then you may not use the Service anymore. These Terms will govern any disputes arising before the effective date of the Updated Terms.
- We reserve the right to force forfeiture of any username for any reason.
- We may, but have no obligation to, remove, edit, block, and/or monitor Content or Accounts containing Content that we determine in our sole discretion violates these Terms or applicable law or other legal requirements, without any prior notice to you. We have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. Content removed from the App may continue to be stored by us, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, we encourage you to maintain your own backup of your User Content. In other words, we are not a backup service and you agree that you will not rely on the Service for the purposes of User Content backup or storage.
- Although it is our intention for the Service to be available as much as possible, there will be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. You hereby assume all such risks by using the Service.
- You agree that we are not responsible for, and do not endorse, User Content posted within the Service. We do not have any obligation to prescreen, monitor, edit, or remove any Content. If your User Content violates these Terms, you may bear legal responsibility for that User Content.
- You are solely responsible for your interaction with other users of the Service, whether online or offline. You agree that Swing by Swing is not responsible or liable for the conduct of any user. Swing by Swing reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post User Content or any personal or other information.
- There may be links from the App, or from communications you receive from the Service, to third-party web and/or mobile apps. There may also be links to third-party web and/or mobile sites within the App. The Service also includes third-party content that we do not control, maintain or endorse. Functionality on the Service may also permit interactions between the Service and a third-party web and/or mobile app, including applications that connect the Service or your profile on the Service with a third-party web and/or mobile app. For example, the Service may include a feature that enables you to share User Content from the App with a third party, which may be publicly posted on that third party’s service or application. Using this functionality typically requires you to login to your account on the third-party service and you do so at your own risk. Swing by Swing do not control any of these third-party web services or any of their content. You expressly acknowledge and agree that Swing by Swing is in no way responsible or liable for any such third-party services or features, content, products or services. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Service or your profile on the Service with a third-party service (each, a “Third Party Application”) and such Third Party Application may interact with, connect to or gather and/or pull information from and to your Service profile. By using such Third Party Application, you acknowledge and agree to the following: (i) if you use a Third Party Application to share information, you are consenting to information about your profile on the Service being shared; (ii) your use of a Third Party Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if Swing by Swing has not itself provided such information; and (iii) your use of a Third Party Application is at your own option and risk, and you will hold the Indemnified Parties (defined below) harmless for activity related to the Third Party Application.
- You agree that you are responsible for all data charges you incur through use of the Service.
- We prohibit crawling, scraping, caching or otherwise accessing any Content on the Service via automated means, including but not limited to, user profiles and photos.
- Although it is our intention for the Service to be available as much as possible, there will be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. We will not be liable to you for any modification, suspension, or discontinuation of the App and/or the Service, or the loss of any Content.
- You acknowledge that Swing by Swing powers other apps that you may download (each, a “Swing by Swing App”). In the event you download another Swing by Swing App, you acknowledge that Swing by Swing may identify you as a pre-existing user of a Swing by Swing App and offer you a universal log-in that allows you to sign-in to multiple Swing by Swing Apps with the same user credentials.
We welcome feedback, comments and suggestions for improvements to the Service (“Feedback”). You can submit Feedback by emailing us at email@example.com. If you provide us any Feedback, you grant to Swing by Swing a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works of and otherwise exploit the Feedback for any purpose.
Rights Granted in the App
Subject to your compliance with these Terms, Swing by Swing grants you a limited, personal, worldwide, royalty-free, non-assignable, non-transferable, non-licensable and non-exclusive license to download and install a copy of the App on a mobile device, computer, smart television or other device that you own or control and to run such copy of the App solely in connection with the Service in compliance with these Terms and in the manner permitted by the Service and solely for your own personal non-commercial purposes.
Content Ownership, Responsibility and Rights Granted in Content
- Swing by Swing does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. You retain your rights to any User Content you submit, post or display on or through the Service. Subject to the foregoing, Swing by Swing and its licensors exclusively own all right, title and interest in and to the Service and Content (other than User Content), including all associated intellectual property rights. You acknowledge that the Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.
- In order to make the Service available to you and other users, we need a license from you. By submitting, posting or displaying any User Content on or through the Service, you grant Swing by Swing a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and fully paid up license, with the right to sublicense through multiple tiers, including App Account holders and users, to use, reproduce, adapt, modify, create derivative works based upon, publish, transmit, public display, publicly perform, exhibit, broadcast, syndicate, distribute, market, promote, and otherwise exploit such User Content in any and all media or distribution methods (now known or later developed), including, without limitation, on television, as well as web, mobile, tablet, and connected television applications controlled, administered, powered, licensed and/or owned by Swing by Swing and/or their licensees and assignees. You acknowledge that certain features of the App enable users to create derivative works of your User Content including, but not limited to, through remixing and repurposing your User Content to, for example, create memes, mashups, stitched content and GIFs.
- You agree that this license includes the right to make User Content submitted to or through the Service available to other companies, organizations or individuals who partner with Swing by Swing for the syndication, broadcast, distribution or publication of such User Content on other media and services. Such additional uses by Swing by Swing, or other companies, organizations or individuals who partner with Swing by Swing, may be made with no compensation paid to you with respect to the User Content that you submit, post, transmit or otherwise make available through the Service.
- We may modify or adapt your User Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your User Content as are necessary to conform and adapt that User Content to any requirements or limitations of any networks, devices, services or media.
- Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Swing by Swing may place such advertising and promotions on the Service or on, about, or in conjunction with your User Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
- You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have all the rights to grant the rights and licenses in your User Content set forth in these Terms ; (ii) neither your User Content, nor your use and provision of your User Content to be made available through the Service, nor any use of your User Content by Swing by Swing, or through the Service, will violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Service (including, without limitation, any public performance or synchronization royalties); and (iv) you have the legal right and capacity to enter into these Terms in your jurisdiction. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
- Subject to your compliance with these Terms, Swing by Swing grants you a limited, non-exclusive, non-transferable, non-sublicensable license to do the following solely in connection with the Service in compliance with these Terms and in the manner permitted by the Service (including any restrictions therein) and solely for your own personal non-commercial purposes: (i) to view and display the Content; (ii) to create specific types of derivative works based upon User Content uploaded by other App Account holders (“Remixable User Content”); and (iii) to create specific types of derivative works based upon specific Content designated by Swing by Swing as remixable content through the Service (“Remixable Swing by Swing Content”). Remixable User Content and Remixable Swing by Swing Content shall collectively be referred to herein as Remixable Content. You acknowledge that you may create derivative works of Remixable Content only in specific types of formats (e.g., memes, GIFs), and with respect to Remixable Swing by Swing Content as explicitly authorized by Swing by Swing and offered through the Service. You agree that all derivative works created by you from any such Remixable Swing by Swing Content (“Swing by Swing Derivatives”) will be the sole and exclusive property of Swing by Swing. You hereby irrevocably transfer and assign to Swing by Swing and agree to irrevocably transfer and assign to Swing by Swing all of your right, title, and interest in and to all Swing by Swing Derivatives, including all intellectual property rights therein. At Swing by Swing’s request and expense, you will execute documents and take such further acts as Swing by Swing may reasonably request to assist Swing by Swing to acquire, perfect and maintain Swing by Swing’s intellectual property rights and other legal protections for the Swing by Swing Derivatives.
- The App contains content owned or licensed by Swing by Swing (“Swing by Swing Content”). Swing by Swing Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Swing by Swing, Swing by Swing owns and retains all rights in the Swing by Swing Content. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.
- The Golf Tracer name and logo are trademarks of Swing by Swing, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Swing by Swing. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Swing by Swing, and may not be copied, imitated or used, in whole or in part, without prior written permission from Swing by Swing.
- If you choose to send us content, information, ideas, suggestions, or other materials, you agree that we are free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.
We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances App Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see the Swing by Swing Copyright Policy below for further information.
Disclaimer of Warranties
THE SERVICE, INCLUDING, WITHOUT LIMITATION, CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER Swing by Swing NOR ANY OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS (COLLECTIVELY, THE ” INDEMNIFIED PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE CONTENT; OR (C) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO OR VIA THE SERVICE. IN ADDITION, THE INDEMNIFIED PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUSES. INDEMNIFIED PARTIES MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT.
THE INDEMNIFIED PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE AND CONTENT IS AT YOUR SOLE RISK. THE INDEMNIFIED PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE OR CONTENT IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE INDEMNIFIED PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
THE INDEMNIFIED PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
Limitation of Liability; Waiver
UNDER NO CIRCUMSTANCES WILL THE INDEMIFIED PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THESE TERMS; (B) THE SERVICE; (C) THE CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE INDEMNIFIED PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE), EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE INDEMNIFIED PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNTS YOU HAVE PAID TO Swing by Swing FOR USE OF THE SERVICE OR CONTENT OR ONE HUNDRED UNITED STATES DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Swing by Swing, AS APPLICABLE.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF Swing by Swing’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB AND/OR MOBILE APP, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE INDEMNIFIED PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB AND/OR MOBILE APP, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE INDEMNIFIED PARTIES.
THE INDEMNIFIED PARTIES ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE THE INDEMNIFIED PARTIES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Swing by Swing AND YOU.
You will defend (at our request), indemnify and hold the Indemnified Parties harmless from and against any claims, disputes, demands, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your User Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Swing by Swing.
Except if you opt-out or for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents) (“Excluded Disputes”), you agree that all disputes between you and Swing by Swing (whether or not such dispute involves a third party) with regard to your relationship with us, including, without limitation, disputes related to these Terms of Service, your use of the Service and/or the App, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and Swing by Swing hereby expressly waive trial by jury. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules. You may bring claims only on your own behalf. Neither you nor Swing by Swing will participate in a class action or class-wide arbitration for any claims covered by these Terms of Service. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Swing by Swing is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then Swing by Swing, or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service.
You may opt out of this agreement to arbitrate. If you do so, neither you nor Swing by Swing can require the other to participate in an arbitration proceeding. To opt out, you must notify Swing by Swing in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:
Swing by Swing Golf, Inc.. ATTN: Arbitration 1170 Richmond Glen Circle, Milton, GA 30004
You must include your name and residence address, the email address you use for your App account, and a clear statement that you want to opt out of this arbitration agreement.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your account.
Time Limitation on Claims
You agree that any claim you may have arising out of or related to the Service or Content must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
These Terms are governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity relating to the arbitration provision of these Terms of Service, the Excluded Disputes or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with Swing by Swing exclusively in a state or federal court located in Fulton County, Georgia, and to submit to the personal jurisdiction of the courts located in Los Angeles County for the purpose of litigating all such disputes.
If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. Our failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition.
These Terms constitute the entire agreement between you and us regarding the Service and Content, superseding any prior agreements between you and us regarding the Service and Content. You will not assign the Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Swing by Swing. Any purported assignment or delegation by you without the appropriate prior written consent of Swing by Swing will be null and void. Swing by Swing may assign these Terms or any rights hereunder without your consent. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. If any provision of these Terms is found by a court of competent jurisdiction to be invalid or otherwise unenforceable, the parties nevertheless agree that such portion will be deemed severable from these Terms and will not affect the validity and enforceability of the remaining provisions, and the remaining provisions of the Terms remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify the Terms. The failure of Swing by Swing to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.
Software related to or made available by the Service may be subject to United States export controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.
Swing by Swing Copyright Policy
Notification of Copyright Infringement
Swing by Swing Golf, Inc. (“Swing by Swing”) respects the intellectual property rights of others and expects its users to do the same.
It is Swing by Swing’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights of others.
In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Swing by Swing will respond expeditiously to claims of copyright infringement committed using the Swing by Swing website or apps powered by Swing by Swing (the “Apps”) that are reported to Swing by Swing’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Apps by completing the following DMCA Notice of Alleged Infringement and delivering it to Swing by Swing’s Designated Copyright Agent. Upon receipt of the Notice as described below, Swing by Swing will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Apps.
DMCA Notice of Alleged Infringement (“Notice”)
- Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material that you claim is 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 us to locate the material, including at a minimum, if applicable, the URL of the link shown on the App(s) where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).” “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
- Deliver this Notice, with all items completed, to Swing by Swing’s Designated Copyright Agent: Copyright Agent c/o Swing by Swing 1170 Richmond Glen Circle, Alpharetta, Ga 30004 contact@Swing by Swing.com
INFORMATION WE COLLECT
We collect the following kinds of information:
App Account and Profile Information: When you create an App Account, we’ll collect certain information that can be used to identify you like your email address and phone number (“Personally Identifiable Information” or “PII”). If you create an App Account using your login credentials from one of your SNS Accounts, such as Twitter or Facebook, we’ll be able to access and collect certain information like your name, username, profile photograph and email address and other PII that your privacy settings on the SNS Account permit us to access. You may provide us with additional profile information, including a short biography, location, and profile photo. If you create your App Account by connecting through another SNS Account, we may use public information from that connected account to help complete your App profile. Some contact information may be required in order to use certain features on the Services. We may also collect certain information that is not PII because it cannot be used by itself to identify you.
Finding Friends and Connecting to Other Services: Our Service includes several features to help connect you to people you already know. For example, at your direction, we may access information from your address book or connect your App Account to your other SNS Account and access your PII and non-PII from the third party services or our Service in order to enable you to find, connect, and message friends.
Content, Following, and other Public Information: The App invites users to share User Content with the community, so the User Content you provide us is information that you choose to be made public. This includes not only the User Content that you post and metadata provided with such User Content (such as when it was posted, hashtags, and geotags), but also the people you follow or connect with, the Content that you like or comment on, and other public interactions on the Services. Your profile, including your name, username, photograph and any other information you provide on your profile, will also be accessed and viewed by the public in general. When you share information or User Content via the Service, you should exercise discretion and good judgment because the information and User Content may not be removed or deleted from the Service.
Messaging Other Users: When you send or receive messages, we collect, process and store the content of those messages (including photos and videos) on our servers. The contents of those messages may also be stored on the devices of recipients. We cannot prevent others from making copies of your messages (e.g., by taking a screenshot). In addition, there may be ways to access messages while still in temporary storage on recipients’ devices or, forensically, even after they are deleted. You should not use the Service to send messages if you want to be certain that the recipient cannot keep a copy. Although messages between you and other users of the App are not made publicly available on the App, we reserve the right to review such messages in the event we believe (in our sole discretion) that you violated our Terms of Service. Notwithstanding the foregoing, when you send or receive messages via our Service, we collect information about these messages, including the time, date, sender and recipient of the message. We also collect information about the number of messages sent and received between you and your friends and which friends you exchange messages with most frequently.
Location Information: In addition to profile information, you may also tell us your exact location if you choose to enable your computer or mobile device to send us location information. We may use and store information about your location to provide features of our Service, such as tagging Content with a location, and to improve and customize the Service, for example, with Content that has been tagged near your location.
Links: We may keep track of how you interact with links across our Service, including our email notifications and third-party services. We do this to help improve our Service, for example to provide relevant advertising, and to be able to share aggregate click statistics, such as how many times a particular link was clicked on.
Cookies and Other Tracking Technologies: We use various technologies to collect information and improve our Service, and this may include sending cookies to you. Cookies are small data files stored on your hard drive or in device memory, and we may use both session cookies and persistent cookies to identify that you’ve logged in to the Service and help us understand and customize how you interact with our Service, see which areas and features of our Service are popular and count visits. We may also include web beacons (also known as “tracking pixels”) on our Service, which are tiny graphics with a unique identifier, to deliver or communicate with cookies, to track and measure the performance of our Service, to monitor how many visitors view our Service, and to monitor the effectiveness of our advertising. Unlike Cookies, which are stored on the user’s hard drive, web beacons are typically embedded invisibly on web pages (or in an e-mail). Most Internet browsers automatically accept cookies. If you do not want cookies from us or other websites, you can instruct your browser, by changing its settings, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. However, some features of the Services may not function properly if you disable cookies.
Log Information: Our servers automatically record information (“Log Data”) created by your use of the Services. Log Data may include information such as your IP address, pages visited and the time spent on those pages, search terms, and other statistics. We receive Log Data when you interact with our Service, for example, when you visit our Apps, sign into our Service, view Content hosted by us, or interact with our notifications. We use Log Data to provide, measure, customize, and improve the Services.
Device Information: We may collect information about the computer or device you use to access our Service, including the hardware model, operating system and version, MAC address, unique device identifier, phone number, International Mobile Equipment Identity (“IMEI”) and mobile carrier.
HOW WE USE YOUR INFORMATION
- Help you efficiently access your information after you sign in;
- Remember information so you will not have to re-enter it during your visit or the next time you visit the App;
- Remember information so you can access all apps powered by the Service with the same login credentials;
- Provide, improve, test, and monitor the effectiveness of the Service;
- Develop and test new products and features;
- Monitor and analyze trends, usage and activities in connection with the Service;
- Diagnose or fix technology problems;
- Automatically update the App on your device;
- Run and administer contests, special offers or other events or activities;
- Provide and deliver the products and services you request, process transactions and send you related information;
- Respond to your comments, questions and requests and provide customer service;
- Send you technical notices, updates, security alerts and support and administrative messages;
- Communicate with you about products, services, offers, promotions, rewards, and events offered by Swing by Swing or others, and provide news and information we think will be of interest to you;
- Personalize and improve the Service and provide advertisements, other forms of marketing, Content or features that match your interests;
- Detect, investigate and/or prevent fraudulent, unauthorized or illegal activity; and
- Carry out any other purpose for which the information was collected.
Swing by Swing is based in the United States and the information we collect is governed by U.S. law. By accessing or using the Service or otherwise providing information to us, you consent to the storage, processing and transfer of information in and to the U.S. and other countries. You acknowledge that we may transfer information that we collect about you, including personal information across borders and from your country or jurisdiction to other countries or jurisdictions around the world. If you are located in the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that we may transfer information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction.
HOW WE SHARE YOUR INFORMATION
Parties With Whom We May Share Your Information:
We may share your User Content and your PII with businesses that are legally part of the same group of companies that Swing by Swing is part of, or that become part of that group (“Affiliates”). Affiliates may use this information to help provide, understand, and improve the Service and Affiliates’ own services (including, without limitation, by providing you with better and more relevant experiences).
We may share your PII with third-party organizations that help us provide the Service to you (“Service Providers”). Our Service Providers will be given access to your information as is reasonably necessary to provide the Service under reasonable confidentiality terms.
We may share certain anonymized information with third-party advertising partners. This information would allow third-party ad networks to, among other things, deliver targeted advertisements that they believe will be of most interest to you.
We may share aggregated information and non-identifying information with third parties for industry research and analysis, demographic profiling and other similar purposes.
We may remove parts of data that can identify you and share anonymized data with other parties. We may also combine your information with other information in a way that it is no longer associated with you and share that aggregated information.
Any information and User Content that you voluntarily post to the Service is made publicly available and may be shared and re-shared by others. When you share information or User Content via the Service, you should think carefully about what you are making public. Please think of your own privacy needs as you choose what to upload, share, and make public on the Service. We cannot control the privacy or security of information and Content once you make it public or share it with others.
Any Content that you make public is searchable by other users and subject to use under our API.
If you remove information that you posted to the Service, copies may remain viewable in cached and archived pages of the Service, or if other users or third parties using our API have copied or saved that information.
Information Disclosed in Connection with Business Transactions: Information that we collect from our users, including PII, is considered to be a business asset. Thus, if Swing by Swing sells or otherwise transfers part or the whole of their respective business or their respective assets to another organization (e.g., in the course of a transaction like a merger, acquisition, bankruptcy, dissolution, liquidation), your PII, Content and any other information collected through the Service may be among the items sold or transferred. You will continue to own your User Content.
We offer you choices regarding the collection, use and sharing of your PII and we’ll respect the choices you make. Please note that if you decide not to provide us with the PII that we request, you may not be able to access all of the features of the Services.
MODIFYING YOUR PERSONAL INFORMATION
If you are a registered user of the App, we provide you with tools and account settings to access or modify the profile information you provided to us and associated with your App Account.
You can also permanently delete your App account by contacting us at email@example.com.
OTHER WEBSITES, APPS AND SERVICES
THE SECURITY OF YOUR INFORMATION
We take commercially reasonable measures to protect the information that we collect from or about you (including your personal information) from unauthorized access, use or disclosure. However, no method of digital transmission, or method of digital storage, is 100% secure. Accordingly, we cannot ensure the security of any information you transmit through the Service or guarantee that information on the Service may not be inappropriately accessed, disclosed, altered, or destroyed.
OUR POLICY TOWARDS CHILDREN
Our Service is not directed to persons under 13. If you become aware that your child has provided us with personal information without your consent, please contact us. We do not knowingly collect personal information from children under 13. If we become aware that a child under 13 has provided us with personal information, we take steps to remove such information and terminate the child’s account.
YOUR CALIFORNIA PRIVACY RIGHTS
California residents may request and obtain from us, once a year, free of charge, a list of third parties, if any, to which we disclosed their PII for direct marketing purposes during the preceding calendar year and the categories of PII shared with those third parties. If you are a California resident and wish to obtain that information, please submit your request by sending us an email at firstname.lastname@example.org with “California Privacy Rights” in the subject line or by writing to us at Swing by Swing, 1170 Richmond Glen Circle, Milton, Ga 30004
The Golf Tracer End User License Agreement
By downloading, installing or using the app you acknowledge and agree that:
- YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST SWING BY SWING GOLF, INC. ARISING OUT OF YOUR USE OF THE APP and any of the information contained thereon;
- the App is licensed, not sold to you and you may use the App only as set forth in this EULA;
- you acknowledge that third party terms and fees may apply to the use and operation of your mobile device in connection with your use of the App, such as your carrier’s terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees;
- as set forth in this EULA, the App is provided “as is”;
- you may request a copy of this EULA by emailing us at email@example.com; and
- if you are using the App on an iOS product, you agree to and acknowledge the “Notice Regarding Apple,” below.
IF YOU DO NOT AGREE TO BE BOUND BY ABOVE TERMS (AS DESCRIBED IN FURTHER DETAIL BELOW) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE APP.
MODIFICATION OF THE EULA
Swing by Swing reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If Swing by Swing materially modifies this EULA it will post the updated EULA in the “Settings Menu” of the App via a hyperlink or by other reasonable means now known or hereafter developed. By continuing to use the App after Swing by Swing has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to discontinue the use of and uninstall the App. This Agreement will also govern any software upgrades and/or updates provided by Swing by Swing that upgrade and/or supplement the App, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.
Conditioned upon your compliance with the terms and conditions of this EULA, Swing by Swing hereby grants to you a limited, revocable, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to install and use the executable form of the App solely for your personal use on a device (whether mobile device or other) owned or controlled by you. Swing by Swing reserves all rights in the App not expressly granted to you in this EULA.
PHONE SETTINGS AND UNINSTALL PROCEDURES
As part of the installation process of the App, you may be changing your mobile device settings and/or your social network account settings. By installing the App, you agree you have approved such changes and you understand you can reconfigure such settings at any time from the “Settings Menu” available in the App, in the configuration options available in your mobile device, from within your social network account or from your mobile device Setting Menu. Such changes may include, without limitation, the following:
- Allowing software updates of the App once a new version is released and the ability to send notifications.
- Allowing Swing by Swing access to location-based information.
- Allowing Swing by Swing access to information contained on your Social Network account (which you must explicitly and separately opt in to).
To uninstall the App, you may use the standard uninstall procedures offered by your device’s Operating System.
You may not use the App in any manner that could: (i) damage, disable, overburden, or impair the App (or any server or networks connected to any the App), or (ii) interfere with any third party’s use and/or enjoyment of the App (or any server or networks connected to the App). Except as expressly specified in this EULA, you may not: (a) copy or modify the App; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the App to any third party; or (c) use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the App, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Swing by Swing and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the App provided in object code or any other Swing by Swing products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
Any Open Source Software that may be accompanying the App is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” mean open source software components provided with the App that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the App. This EULA does not apply to any Open Source Software accompanying the App and Swing by Swing hereby disclaims any and all liability to you or any third party related thereto.
RESERVATION OF RIGHTS
The software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code and all other elements of the App (the “Swing by Swing Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Swing by Swing Materials, including intellectual property rights therein and thereto, are the property of Swing by Swing or its subsidiaries or affiliated companies and/or third-party licensors. Swing by Swing reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the Swing by Swing Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
The App provides certain features that enable you to post a variety of content to the App (“User Content”) including, but not limited to, images, captions, comments, usernames, bios or links. You are solely responsible for all User Content that you make available through the App. Similarly, Swing by Swing is not responsible to you for any User Content provided by other users of the App. When you contribute, upload or otherwise provide User Content via the app, you agree to comply with the following Community Usage Rules. In addition to removing such prohibited content, Swing by Swing may terminate the responsible accounts, and/or report such activities to law enforcement authorities as appropriate. Prohibited User Content includes, but is not limited to, content that Swing by Swing determines:
- is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
- is designed to bring down another group or individual harasses or advocates harassment of another person;
- criticizes the weight or appearance of another person;
- is supporting, glamorizing, or encouraging disordered eating;
- exploits people in a sexual or violent manner or contains nudity, excessive violence, or offensive subject matter or contains a link to an adult or otherwise objectionable website;
- involves commercial activities and/or sales without prior written consent from Swing by Swing such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- violates or attempts to violate the privacy rights, publicity rights, copyrights, patent rights, trademark rights, contract rights or any other rights of any person.
Swing by Swing does not allow infringing materials on the App, and you agree and acknowledge that Swing by Swing may block or remove User Content that is the subject of Digital Millennium Copyright Act compliant takedown notices and disable accounts of users determined to be “repeat infringers.” By submitting User Content to Swing by Swing you hereby grant Swing by Swing and its affiliates, sublicensees, partners, designees, and assignees of the App (collectively, the “Swing by Swing Licensees”) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, transferable, worldwide license (without any obligation to exercise) to use, reproduce, distribute, modify, adapt, publicly display, publicly perform, and otherwise exploit your User Content and derivatives thereof in connection with the App and Swing by Swing’s (or its successors’) business in any media formats and through any media channels now known or hereafter discovered or developed.
TERM AND TERMINATION
This EULA will remain in effect until terminated. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. You may terminate the EULA by uninstalling and discontinuing your use of the App. Swing by Swing may terminate support of the App and/or this EULA, or limit or terminate your access to the App at any time for any reason. Sections entitled Reservation of Rights, User Content, Term and Termination, Warranty Disclaimer and Limitation of Liability, Indemnification, and Miscellaneous shall survive any termination of this EULA.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Swing by Swing DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. Swing by Swing EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE.
IN NO EVENT WILL Swing by Swing, ITS OFFICERS, ITS DIRECTORS, OR ITS AFFILIATES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE THE APP AND THE INFORMATION AVAILABLE ON THE APP OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE APP. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST Swing by Swing, LLC. ARISING OUT OF YOUR USE OF THE APP AND THE INFORMATION THEREON.
To the maximum extent permitted by law, You agree to defend, indemnify and hold Swing by Swing, its officers, directors, partners, employees, contractors, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use of the Service or any breach by you of this EULA.
(a) This EULA and all the policies referenced herein constitute the entire agreement between Swing by Swing and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of Swing by Swing. (b) The section titles in this EULA are provided solely for convenience and have no legal or contractual significance. (c) This EULA shall be governed by and interpreted under the laws of the State of Georgia, without regard to its conflicts of laws provisions. All actions relating to this EULA and the App shall be brought in a state or federal court located in Fulton County, Georgia. (d) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. (e) If for any reason a court of competent jurisdiction finds any provision of his EULA or portion thereof, to be unenforceable, that provision of this EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. (f) You may not assign your rights under this EULA to any party without Swing by Swing’s consent. (g) If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this EULA and shall not affect the validity and enforceability of any remaining provisions.
NOTICE REGARDING APPLE
You acknowledge that this EULA is between you and Swing by Swing, LLC. only, not with Apple, and Apple is not responsible for the App and 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 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 Swing by Swing provides a translation of the English language version of this EULA is provided, the translation is provided solely for convenience, and the English version shall prevail.