iSwagg TERMS OF SERVICE
Last modified: July 20, 2018.
INTRODUCTION AND ACCEPTING THE TERMS
RIGHTS TO USE THE SERVICE
The Service provides a social online and mobile chat platform via the App and related Internet services. The Service may allow you to participate in public and private chat rooms and to utilize messaging features to communicate with other users of the Service. Subject to your compliance with these Terms, the Company grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and access the Service, solely for your personal, non-commercial use. You agree not to (and not to attempt to) (i) use the Service for any use or purpose other than as expressly permitted by these Terms or (ii) copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or any portion of the Service, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by the Company or its licensors, except for the permissions and rights expressly granted in these Terms. Company reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. The Company reserves the right to refuse any user access to the Services without notice for any reason, including but not limited to a violation of the Terms. If you violate these Terms, the Company reserves the right to issue you a warning regarding the violation or immediately terminate or suspend any or all Accounts you have created using the Service. You agree that the Company need not provide you notice before terminating or suspending your Account(s), but it may do so.
We will not charge you a fee to use the basic functionality of the Service. However, you may have to pay a fee to use certain features of the Service or to obtain Virtual Currency or Virtual Goods (as defined and discussed further below). The price for utilizing these features or obtaining such Virtual Currency or Virtual Goods will be displayed on the App. We may also require you to pay any amounts due via a third-party payment service. Payments of such fees will be governed by your app store’s or such third party’s terms applicable to in-app purchases. You agree to comply with all such terms and other requirements of your app store or such third party. You are responsible for determining and paying the appropriate government taxes, fees, and service charges resulting from a transaction occurring through the Service. We are not responsible for collecting, reporting, paying, or remitting to you any such taxes, fees, or service charges, except as may otherwise be required by law.
You are responsible for your log-in credentials and for any activity resulting from the use of your log-in credentials or other activity on your account (“Account”) on the Service. Upon launching the App or the Service, if you do not already have an Account, you will be prompted to create one by providing a username and in some cases a password. You may also be required to provide a valid email address or other information to access or utilize certain applications or features. You represent and warrant that the information you provide to us upon registration and at all other times will be true, accurate, current, and complete. We reserve the right to reject any username or to terminate your username or prevent use of a username in our sole discretion, and without any liability to you. You understand and agree that other users of the Service may have the same username as you, however, users will be differentiated by a number identifier that may or may not be visible to you or other users. You will ensure that your e-mail address is kept accurate and up-to-date at all times. If we allow you to use the App without creating an Account (e.g., if we make available a single-session use feature), any username you select for use in connection with the App will be available for other users after your session ends. You are responsible for maintaining the confidentiality of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials or otherwise on your Account. You agree to notify us immediately if you believe the confidentiality of your log-in credentials has been compromised or if you suspect unauthorized use of your Account. You agree that we will not be liable for any loss or damage arising from unauthorized use of your credentials.
We may communicate with you by email or posting notice via the Service. You agree to receive email from us at the email address you provided to us for customer service-related purposes. By using the Service or providing information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. You may use the Service to send messages to other users of the Service. You agree that your use of the Service will not include sending unsolicited marketing messages or broadcasts (i.e., spam). We may utilize a variety of means to block spammers and abusers from using the Service. If you believe spam originated from the Service, please email us immediately at info@iSwagg.com.
INTELLECTUAL PROPERTY RIGHTS
All rights, title and interest in and to all materials that are part of the Service (including, but not limited to, designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement), except for Your Content, collectively referred to as the "Service Materials", are, as between the Company and you, owned by the Company and/or its third party licensors. You acknowledge and agree that you shall not acquire any ownership rights whatsoever by downloading Service Materials or by purchasing any Virtual Currency or Virtual Goods (each as defined below).You agree that you shall not modify, copy, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, or sell in any form or by any means, in whole or in part, or otherwise exploit the Service Materials without our express prior written permission. You acknowledge that you do not acquire any ownership rights by using the Service or by accessing any Service Materials posted on the Service by the Company, or any derivative works thereof. All rights not expressly granted by these Terms are reserved by the Company and its licensors, and no license is granted hereunder by estoppel, implication or otherwise.
Any data, text, graphics, photographs and their selection and arrangement, and any other materials uploaded to the Service by you is “Your Content.” You represent and warrant that Your Content is original to you and that you exclusively own the rights to such content, including the right to grant all of the rights and licenses in these Terms without the Company incurring any third-party obligations or liability arising out of its exercise of such rights and licenses. All of Your Content is your sole responsibility and the Company is not responsible for any material that you upload, post, or otherwise make available. By uploading, distributing, transmitting or otherwise using Your Content with the Service, you grant to us a perpetual, nonexclusive, transferable, royalty-free, sublicensable, and worldwide license to use, host, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display Your Content in connection with operating and providing the Service. The Company does not guarantee the accuracy, quality, or integrity of any user content posted. By using the Service, you acknowledge and accept that you may be exposed to material you find offensive or objectionable. You agree that the Company will not under any circumstances be liable for any user content, including, but not limited to, errors in any user content, or any loss or damage incurred by use of user content. The Company reserves the right to remove and permanently delete Your Content from the Service with or without notice for any reason or no reason. You may notify the Company of any user content that you believe violates these Terms, or other inappropriate user behavior, by emailing info@iSwagg.com.
VIRTUAL CURRENCIES AND VIRTUAL GOODS
The Service may include an opportunity to obtain virtual currency ("Virtual Currency") or virtual goods ("Virtual Goods") that may require you to pay a fee using legal tender (that is, "real money") to obtain the Virtual Currency or Virtual Goods. Your purchase of Virtual Currency is final and is not refundable, exchangeable, transferable, except in the Company’s or the platform provider’s sole discretion. You may not purchase, sell, or exchange Virtual Currency outside the Service. Doing so is a violation of the Terms and may result in termination of your Account with the Service and/or legal action. The Company retains the right to modify, manage, control and/or eliminate Virtual Currency and/or Virtual Goods at its sole discretion. Prices and availability of Virtual Goods are subject to change without notice. We shall have no liability to you or any third party for the exercise of such rights. You shall have a limited, personal, non-transferable, non-sublicensable permission to use solely within the Service Virtual Goods and Virtual Currency that you have earned, purchased or otherwise obtained in a manner authorized by the Company. You have no other right, title or interest in or to any such Virtual Goods or Virtual Currency appearing or originating in the Service.
RULES OF CONDUCT AND USAGE
The Service provides communication channels such as forums, communities, or chat areas ("Communication Channels") designed to enable you to communicate with other Service users. The Company has no obligation to monitor these communication channels, but it may do so in connection with providing the Service. The Company may also terminate or suspend your access to any Communication Channels at any time, without notice, for any reason. You acknowledge that any user content (including without limitation chats, postings, or materials posted by users) on the Communication Channels is neither endorsed nor controlled by us. The Company will not under any circumstances be liable for any activity within Communication Channels. The Company is not responsible for information that you choose to share on the Communication Channels, or for the actions of other users. As a condition of your use of the Service, and without limiting your other obligations under these Terms, you agree to comply with the restrictions and rules of use set forth in these Terms and our Community Guidelines as well as any additional restrictions or rules (such as application-specific rules) set forth in the Service. As an example, you agree not to use the Service in order to:
• post, upload, transmit or otherwise disseminate information that is obscene, indecent, vulgar, pornographic, sexual or otherwise objectionable as outlined in our Community Guidelines;
• defame, libel, ridicule, mock, stalk, threaten, harass, intimidate or abuse anyone;
• upload or transmit (or attempt to upload or transmit) files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of the Service or other users' computers;
• violate the contractual, personal, intellectual property or other rights of any party including using, uploading, transmitting, distributing, or otherwise making available any information made available through the Service in any manner that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity);
• attempt to obtain passwords or other private information from other members;
• improperly use support channels or complaint buttons to make false reports to us;
• develop, distribute, or publicly inform other members of "auto" software programs, "macro" software programs or other "cheat utility" software program or applications in violation of the applicable license agreements;
• exploit, distribute or publicly inform other members of any game error, miscue or bug which gives an unintended advantage; or violate any applicable laws or regulations, or promote or encourage any illegal activity including, but not limited to, hacking, cracking or distribution of counterfeit software, or cheats or hacks for the Service.
These rules of use are not meant to be exhaustive, and we reserve the right to determine what conduct we consider to be a violation of the Terms, Community Guidelines or improper use of the Service and to take action including termination of your Account and exclusion from further participation in the Service.
We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you send to us any comments, suggestions or recommendations regarding the Service (“Feedback“ ) you hereby assign to us all rights, title and interest in and to the Feedback. Accordingly, your Feedback will not be subject to any obligation of confidentiality and we will not be liable to you for any use or disclosure of any Feedback. Also, we will be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
We use third-party services to help us provide the Service, but such use does not indicate that we endorse them or are responsible or liable for their actions. In addition, the Service may link to third-party websites to facilitate its provision of services to you. If you use these links, you will leave the Service. Some of these third-party websites may use Service Materials under license from us. We are not responsible for nor do we endorse these third-party websites or the organizations sponsoring such third-party websites or their products or services, whether or not we are affiliated with such third-party websites. You agree that we are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a third-party website or as a result of the presence of any third-party advertising on the Service.
You may terminate your Account at any time and for any reason by sending an email to info@iSwagg.com. The Company may terminate your Account and your access to the Service (or, at the Company's sole option, applicable portions of the Service) at any time and for any reason. The Company is not required to provide you with any notice or warning prior to any such termination. You may, as the result of termination, lose your Account and all information and data associated therewith, including without limitation your Virtual Currency and Virtual Goods, as applicable and the Company is under no obligation to compensate you for any such loss.
DISCLAIMER OF WARRANTY
THE SERVICES AND THE SERVICE MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE THE COMPANY ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY, BE LIABLE TO YOU OR TO ANY THIRD PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF THE SERVICE OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES.THE COMPANY SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE AMOUNT YOU HAVE PAID TO US IN ACCORDANCE WITH THESE TERMS IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM OR (B) $100.. THE LIMITATIONS AND DISCLAIMERS IN THESE TERMS DO NOT PURPORT TO LIMIT LIABILITY OR ALTER RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, ISWAGG’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY SHALL NOT BE LIABLE FOR USER CONTENT, INCLUDING WITHOUT LIMITATION YOUR CONTENT, OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
You agree to indemnify and hold the Company, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with (i) your use of and access to the Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right or any third party agreement; or (iv) any of Your Content or information in your Account or any other information you post or share on or through the Service. As used in this section, "you" shall include anyone accessing the Service using your password.
INTERNATIONAL USE; EXPORT CONTROLS
Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
The following additional terms and conditions apply with respect to any App that the Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”): - You acknowledge that these Terms are between you and iSwagg only, and not with Apple, Inc. (“Apple”).
• Your use of the Company’s iOS App must comply with Apple’s then-current App Store Terms of Service.
• The Company, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
• You agree that the Company, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App.
• You agree that the Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
• You 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.
• You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
• The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the Company’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
You are solely responsible for your interaction with other users of the Service and other parties that you come in contact with through the Service. The Company hereby disclaims any and all liability to you or any third party relating to your use of the Service. The Company reserves the right, but has no obligation, to manage disputes between you and other users of the Service.
Copyright Complaints: The Company respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify the Company of your infringement claim in accordance with the procedure set forth below. The Company will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to the Company’s Copyright Agent at info@iSwagg.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at: iSwagg, Attention: DMCA Takedown Request, 3062, Euclid Heights Blvd, Cleveland Heights, OH 44118.To be effective, the notification must be in writing and contain the following information:
• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that you claim has been infringed;
• a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
• 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.
Counter-Notice: If you believe that Your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in Your Content, you may send a written counter-notice containing the following information to the Copyright Agent:
• your physical or electronic signature;
• identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of Ohio and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, the Company will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion. Repeat Infringer Policy: In accordance with the DMCA and other applicable law, the Company has adopted a policy of terminating, in appropriate circumstances and at the Company's sole discretion, users who are deemed to be repeat infringers. The Company may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement
By visiting or using the Service, you agree that the laws of the United States and the State of Ohio, without regard to principles of conflict of laws and regardless of your location, will govern these Terms and any dispute of any sort that might arise between you and the Company. Any claim or dispute between you and the Company that arises in whole or in part from these Terms or your use of the Service shall be decided exclusively by a court of competent jurisdiction located in Cuyahoga County, Ohio, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Cuyahoga County, Ohio. You acknowledge that the rights granted, and obligations made to the Company under these Terms are of a unique and irreplaceable nature, the loss of which may result in immediate and irreparable harm to the Company for which remedies at law are inadequate. The Company shall therefore be entitled to seek injunctive or other equitable relief (without the obligation to post any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief. You agree to be responsible for obtaining and maintaining all telephone, computer hardware mobile devices and other equipment needed for access to and use of the Service, and all charges related thereto. These Terms constitute the entire agreement between you and the Company with respect to your use of the Service and any other subject matter hereof and cannot be changed or modified by you except as expressly posted on the Service by the Company. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third party software. The failure of the Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision, and no waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. These Terms may not be assigned by you without the Company's prior written consent, but are freely assignable by the Company. The section headings used herein are for convenience only and shall not be given any legal import. Upon the Company's request, you will furnish the Company with any documentation, substantiation or releases necessary to verify your compliance with these Terms. You agree that these Terms will not be construed against the Company by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms. You agree that the provisions of these Terms that by their nature should survive termination will survive any termination of these Terms.
• Last modified: July 20, 2018.
• Effective: JULY 25, 2018.