Updated on: November 18, 2021
THIS AGREEMENT CONTAINS CLASS ACTION WAIVER. PLEASE REVIEW CAREFULLY.
- CHANGES TO THIS AGREEMENT
We reserve the right, in our sole discretion, to change, modify and/or revise this Agreement (including any Annex) at any time. Any such changes are effective immediately upon our posting of the amended Agreement or other notice to you. You agree that your continued use of the Services following such posting constitutes acceptance of the Agreement as amended. If you have the Agreement cached on a browser, the applicable Agreement is the most recent version of the Agreement that appears on a non-cached browser. You should review the Agreement on our Website frequently.
- THE SERVICES
The Services include our written and digital publications and materials (the “Content”), website, and memberships (collectively, the “Services”). “Content” means, but is not limited to, surveys, data, information, research, e-letters, newsletters, digests, articles and blogs, news aggregate services, emails, images, graphs, and any visual, or digital content made available on or through the Services. “Downloadable Content” means Content which can be downloaded as files by registered users. The Services may now, or in the future, include Services for which you must pay a subscription or fee in order to have access to the Content (the “Subscription Fee”). For the avoidance of doubt, this Agreement applies to Services that are made available for access only by a User to whom we have issued Credentials (defined below), as well as those Services made available by public online web access (without user login), by email, that do not require Credentials, or through other processes.
Downloadable Content includes survey-related content subject to a limited lifetime license granted to registered users for use which may not be further sublicensed. Any use of the Downloadable Content and/or services, including, but not limited to any use of surveys and survey-related content, should credit the company that commissioned the survey.
This Agreement applies to all Services as part of a membership subscription for the Services. If you purchase or use the Services that are free, are sold or otherwise provided together as a solution or bundled package (as opposed to your purchasing or using Services separately), termination of any part of the Services may result in the termination of all Services provided as part of the solution or bundled package unless otherwise indicated by us. See the Section 12 for additional details on this subject. You agree to provide SWNS with your full name and email as a condition to this Agreement.
3. DISCLAIMERS CONCERNING THE CONTENT WE PROVIDE
You acknowledge and agree to the following:
- You must not use our Services in any way that causes, or may cause, damage to the services or impairment of the availability or accessibility of the services; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. You must not use our services to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software. You must not conduct any systemic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our website without our express written consent. You must not use our website for any purposes related to marketing without our express written consent;
- Access to certain areas of our website and certain content and/or other aspects of the services may be restricted to registered users. We reserve the right to restrict access to areas of our website and content, or all the services at our sole discretion.
- None of our personnel, including, but not limited to, editorial staff, employees or independent contractors (collectively, “Our Representatives”), will provide you with personalized advice regarding the value or suitability of, or advisability of using our content or Services in any way;
- SWNS sometimes uses third party sources to generate content, whilst every effort is made to ensure the availability and accuracy of third-party content, SWNS shall not be liable for any loss or damages suffered by any party using third party content displayed on the website to the fullest extent that SWNS may exclude or limit such liability. Where the website contains links to other sites and resources, which are provided by third parties, these links and resources are provided for your information only and you access them at your own risk. We are not liable or responsible for the content of third-party sites or resources.
- From time to time, reference may be made in our marketing materials to prior articles and opinions we have published. These references may be selective, may reference only a portion of an article or recommendation, and may not be current.
- Your use of the services shall apply only in an editorial context. Your use of any downloadable content, images and/or video may only be used to illustrate the content derived from the Services. You agree to credit pictures and video in the format supplied by SWNS. You shall comply with all relevant personal data legislation and agree to remove any content if required by SWNS in the future.
- The information, research and opinions and other Content that SWNS provides as part of the Services are obtained or derived from sources believed to be reliable, but we cannot guarantee their accuracy and completeness nor the opinions and survey results based thereon.
We reserve the right to change, modify or discontinue any Content or any portion or feature of the Services. Such changes may include, but are not limited to, adding or removing any of Content, ceasing to provide access to a Service (and/or providing an alternative Service to you as a replacement), or changing the terms of engagement for a Service. We may make these changes or modifications at our sole discretion, either temporarily or permanently, at any time or from time to time, with or without notice to you. You agree that SWNS shall not be liable to you or any third party for any such change or modification of the Content and/or Services and that your continued use of the changed or modified Content and/or Services, and/or continued access to the changed or modified Content and/or Services, constitutes your acceptance of any such changes or modifications.
5. LICENSE; USER REPRESENTATIONS AND WARRANTIES
- LICENSE TO USE THE SERVICES
SWNS grants to you a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access and use the Services, and to use the Downloadable Content subject to terms of this Agreement. You acknowledge and agree that you do not acquire any ownership rights by accessing or using the Services or Content. In no event shall you use any Content available through the Services for any other purpose, or provide access to any Service, or copy, disclose, share or redistribute any such Content to any third party for any other use except those authorized under this Agreement or approved by SWNS in writing. SWNS reserves all rights not expressly granted in and to the Services and/or the Content.
- USER REPRESENTATIONS & WARRANTIES AND USE RESTRICTIONS
In consideration of your use of the Services and/or the Platforms, you hereby represent and warrant as follows (whereby you agree that your failure to perform these responsibilities shall be deemed a material breach of this Agreement):
i. You can form legally binding contracts under applicable law and are not a person barred from receiving the Services under the laws of the United States or other applicable jurisdictions;
ii. You are at least eighteen (18) years old or the age of majority in the jurisdiction in which you reside so that you can form a binding contract with SWNS, and are responsible for supervising the activities of any under-age User;
iii. To your knowledge, there is no action, proceeding or investigation pending or threatened which questions, directly or indirectly, the validity or enforceability of this Agreement;
iv. Entering into this Agreement or otherwise purchasing, using or accessing the Services will not conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default or result in a termination of, any agreement or instrument to which you are a party;
v. You have taken all actions required by applicable law and have obtained all consents which are necessary to authorize or enable you to enter into this Agreement and/or purchase, use or access the Services;
vi. You will provide/maintain your User Account with current, accurate and updated information for registration purposes and for our use in contacting you regarding the Services and otherwise for notices and/or updates from us, and you will check such points of contact frequently throughout the term of this Agreement for notices and/or updates from us;
vii. You shall not use the Services in any manner that either directly or indirectly infringes any rights of SWNS or any third party;
viii. Your use of the Services will in all respects conform to all applicable laws, rules and regulations and you accept sole and absolute liability for harm caused by the wrongful use of the Services;
ix. You are solely responsible for all statements made and acts or omissions that occur on your User Account;
x. You agree that you are solely responsible for contacting us, consistent with and pursuant to the terms of this Agreement, with notice of your decision to cancel or discontinue the Services. IF NO SUCH NOTIFICATION IS GIVEN TO US BY YOU, WE WILL ASSUME YOU ARE SATISFIED WITH AND ACCEPT ALL SERVICES, AND WE WILL BILL ANY RELATED SERVICE FEES DIRECTLY TO YOUR PAYMENT ACCOUNT (DEFINED BELOW).
We may permanently or temporarily limit, condition, terminate or suspend your access to the Services or any features thereof for any reason, with or without notice and without any liability to you or any third party, including if in our sole determination you breach or violate any provision of this Agreement, commit fraud, commit intellectual property infringement, or other abuse in your use of the Services, if we believe that such suspension or termination is necessary for the security of the Services, Content or any User Data (defined below), or for no reason.
You shall be responsible for obtaining the requisite communication lines and internet connections to interface with the Services and you shall bear all risks of failing to make concurrent modifications to your devices and equipment.
You expressly waive any and all rights against SWNS and hold us harmless in connection with any claims relating to any action taken by us as part of our investigation or remediation of a suspected violation or result of our conclusion that a violation of this Agreement has occurred, including, but not limited to, the suspension or termination of your User Account.
6. REGISTRATION AND PRIVACY
- REGISTRATION; CONFIDENTIALITY
In order to access certain Services, you must apply and register for an account for the Service (“User Account”). When you register for a User Account, you will be issued a user ID, associated password, or other login credentials (“Credentials”), which will be assigned specifically to you. SWNS, in its sole discretion, may deny User Account registration to you for any or no reason. Unless otherwise provided in this Agreement, you may only activate one (1) User Account. SWNS may rely on the accuracy of such information provided by you in your User Account and on any activity on the Service conducted through the use of Credentials.
You are solely responsible for maintaining strict confidentiality of your Credentials and ensuring that Credentials are used only by you and not used by or disclosed to any third party. All Users must keep their User Account passwords secure and we encourage you to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols). You must immediately notify SWNS when you become aware of any possible unauthorized use of your User Account, or any possible breach of security, including loss, theft or unauthorized disclosure of your Credentials. Upon receipt of the foregoing notice, SWNS may, in our sole discretion, undertake commercially reasonable efforts to suspend or disable the applicable Credentials and you shall be responsible for any actions taken prior to such notification. You are solely responsible for all activities that occur under your User Account whether by you or any other person who gains access to the Service by use of your Credentials or otherwise as a result of your failure to use reasonable security precautions. You agree that in no event shall SWNS be responsible for any losses directly or indirectly caused by the unauthorized use or misuse of your User Account or Credentials. You are not permitted to transfer to or re-sell your use of or access to the Services or Content to any third party.
7. TERMS APPLICABLE TO THE SERVICES
- SUBSCRIPTIONS, FEES AND PAYMENTS
The Services are made available currently on a free subscription basis, which is subject to change in our sole discretion. We reserve the right, in our sole discretion, to implement, change or modify the applicable prices, fees, charges or other conditions for use of the Services upon reasonable notice to you. In the event that fees are implemented, all users who are on a free plan will be notified. Certain Downloadable Content and/or services may be made available to you based on a fee per story download basis. You will be notified of the applicable download fee at the time of download. You agree as consideration for the Services you purchase, you shall promptly pay SWNS all applicable prices and fees (collectively, the “Fees”) as designated in the related order process, with such Fees subject to change as provided in this Agreement. All Fees are due immediately or upon ordering and are non-refundable, except as otherwise expressly provided in this Agreement. To the fullest extent permitted by applicable law, you are responsible for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (“Taxes”) due with respect to your purchase of the Services. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. For U.S. users, the actual Taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. You may have a duty to directly report and pay Taxes if we do not collect such Taxes. Taxes will be calculated based on where you receive services determined by your User Account address. All taxes charged will be reflected upon payment.
Only valid payment methods acceptable to us may be used to complete a purchase. You represent and warrant that you are authorized to use your designated payment method. You authorize SWNS to charge your designated payment method for the total amount of your purchase (including any applicable taxes and any shipping and handling charges). If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, you remain responsible for any uncollected amounts. Unless otherwise stipulated in the related order process, payment for the Services are to be made via a charge to your credit card, bank account, or other payment methods we deem acceptable that you provide to us (the “Payment Account”). You are solely and absolutely responsible for any information related to the Payment Account that you provide to SWNS and must promptly inform us of any changes or updates to the method of payment. By submitting an order to purchase the Services, you authorize us to charge the order to the Payment Account or to otherwise immediately bill you for such Services. You acknowledge and agree that unless otherwise expressly stated in the order process or otherwise changed afterwards in accordance with the applicable process, all annual, monthly or other recurring Fees related to the Services or otherwise referenced in this Agreement are to be recurring transactions that will be billed on an ongoing basis until such Services are terminated in accordance with this Agreement. If you have provided billing information sufficient for automatic billing, then we will bill you automatically in accordance with the applicable billing frequency. You are obligated to pay for the full amount of the Agreement, even if such full amount is scheduled to be paid in installments. If you elect to pay for the Services in installments, provided such a payment schedule is expressly permitted and accepted by us, all installments must be received on or before the applicable due date.
You agree to pay all Fees and other charges incurred in connection with your Payment Account (including, but not limited to, any applicable taxes) at the rates in effect when the charges were incurred. You agree to pay all amounts due upon our demand. Without limiting any of SWNS’s rights hereunder, should any Fee payment become delinquent, we may suspend or cancel your Services; provided, however, related charges will continue to accrue. You acknowledge and agree that SWNS is not responsible whatsoever for any effect the suspension of Services might have on you or any third party.
If you pay for the Services by credit card or other applicable method, you permanently and irrevocably waive any and all right to enact an improper “chargeback” (that is, a disputed, reversed or contested charge with the applicable bank card, credit card or other payment method) against these Fee payments for any reason whatsoever against SWNS. If for any reason, SWNS is unable to charge your Payment Account for the full amount of the Fee owed for the Services provided, or if we receive notification of an improper chargeback, reversal, payment dispute or are charged a penalty for any Fee previously charged to your Payment Account, you agree that we may pursue all available lawful remedies in order to obtain payment, including, but not limited to, immediate cancellation, without notice to you, of any or all of your Services. We also reserve the right to charge you reasonable “administrative fees” or “processing fees” for (i) additional tasks we may perform outside the normal scope of the Services; (ii) additional time and/or costs we may incur in providing the Services, and/or (iii) your noncompliance with this Agreement (as determined by us in our sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to: (i) customer service issues that require additional personal time or attention; (ii) recouping any and all costs and fees incurred by SWNS as the result of improper chargebacks or other payment disputes brought by you, your bank or other payment method processor. These administrative fees or processing fees will be billed to the Payment Account you have on file with SWNS.
YOU UNDERSTAND AND AGREE THAT ALL FEES ARE NONREFUNDABLE AND THAT SWNS MAY CHANGE ANY PRICE, FEE, RATE OR PLAN AT ANY TIME UPON NOTICE TO CUSTOMER IN ACCORDANCE WITH THIS AGREEMENT.
- TERM; SUBSCRIPTION RENEWALS
Your subscription will continue for the period referenced during registration (the “Term”) and renew automatically at the end of the Term, unless you notify us that you are not renewing your subscription or by another designated cancellation method. You must notify us at least one day before the renewal date in order to avoid being charged for the renewal of your subscription, if a subscription fee is applicable to your account. No action by you or your failure to notify us as stated above will result in the then-applicable monthly, periodic or annual subscription Fee being billed automatically to your Payment Account. Please note that in connection with recurring billing for subscription renewals for such Services, you authorize SWNS to bill the payment method(s) associated with your Payment Account, regardless of whether information associated with your subscription has changed, such as the expiration date of the credit card with which you initially subscribed.
In the event that you are not enrolled in our automatic renewal service, or have opted out of the automatic renewal service, and want to renew your Services, you acknowledge and agree you are responsible for actively renewing your Services and you further assume all risk and consequences of not enrolling in the automatic renewal service. If any Service is not successfully renewed prior to the expiration of its then current Term, all your rights to such Service will terminate, and we will have no obligation to allow you to renew a Service once its expiration date has passed. You are solely and absolutely responsible for ensuring the Services are renewed. We shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the Services whether due to you, us or a third party. In order to process a renewal under our automatic renewal service, we may receive information from financial institutions or use third-party vendors for the purpose of updating the expiration date and account number of your credit card or other payment method on file relating to you Payment Account. Such financial institutions and third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated information relating to your Payment Account by comparing the information we have on file with the information the financial institution or third-party vendor has on file. By using our automatic renewal service, you acknowledge and agree that we may share your credit card or other payment method information relating to you Payment Account with such financial institutions or third-party vendors for the purpose of obtaining any updates to your credit card expiration date, account number or any other information relating to your Payment Account.
- CANCELLATION; REFUNDS
To cancel the Services of SWNS, you may cancel by changing your preferences in your User Account or by another designated cancellation method. The Services may be cancelled as set forth below.
In the event that SWNS makes paid Services available for purchase and/or subscription, when you subscribe to such paid Services, your Payment Account will be billed the applicable subscription Fee and your paid subscription will commence. Once your subscription commences, we do not provide refunds for initial orders or recurring monthly payments. If you cancel your monthly subscription for a specific Service, you will not receive a refund or reimbursement of your monthly subscription Fee; however, you will not be charged any future monthly subscription Fees relating to such Service
8. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
Except as otherwise set forth herein, all right, title and interest in and to: (A) the Services and the Content; (B) all registered and unregistered trademarks, service marks and logos; (C) all trade secrets, proprietary information, our confidential information, and know-how; (D) all registered and unregistered copyrights including, but not limited to, any text, forms, images, displays, and software; (E) Processed Data (defined below); (F) Activity Metadata (defined below), (G) Feedback (defined below), and (H) all other intellectual property, proprietary rights or other rights related to tangible or intangible property which are used, developed, comprising, embodied in or practiced in connection with any of the Services identified herein (collectively, “SWNS Intellectual Property Rights”) are owned by SWNS, and you agree to make no claim of interest in or ownership of any such SWNS Intellectual Property Rights. You acknowledge and agree that no title to the SWNS Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in any of the Services, other than the rights expressly granted in this Agreement. The right, title, and interest to the User Data is owned by you.
Except as otherwise provided herein, you may download, access and use only the Downloadable Content. To properly credit the source materials, we recommend that you include the following notice in the materials you generate based on partly or entirely of the Downloadable Content: “Copyright 2021 SWNS. All rights reserved.” And for research materials, we advise: “Conducted by OnePoll and commissioned by [NAME OF CONTENT PARTNER INDICATED BY US]”. Copying, distribution, storing, or transmission of any kind, or any commercial use of the Content other than Downloadable Content, is prohibited without our prior written permission. If you would like to license any content other than the Downloadable Content, please contact us. Except as explicitly authorized under this section, you may not sell, transfer or barter your subscription, our Services or Content, or any individual publication. You acknowledge and agree that you do not acquire any ownership rights in the Content by using the Services.
“SWNS” and certain other marks used on the Services are trademarks and/or service marks of SWNS. All other trademarks, service marks, and logos used on the Services are the trademarks, service marks, or logos of their respective owners.
If you provide any feedback (such as posting on our articles and/or forums, if any), submit any materials to us, or suggest any changes or modifications to any Service (“Feedback”), such Feedback shall be deemed non-confidential and SWNS will own all right, title, and interest in, and shall have all rights to use, such Feedback. You hereby irrevocably assign to us all right, title, and interest in and to the Feedback and agree to provide us any assistance we may require to document, perfect and maintain our rights in the Feedback.
For any Feedback which cannot be legally assigned to us, you agree to grant to SWNS a worldwide, unlimited, irrevocable, royalty-free license to publicly and privately use in any and every way, distribute, modify, offer for sale or exploit, and sublicense any such Feedback, with no obligation to pay you royalties or any other compensation.
You agree that you may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Service. You agree that any derivative or transformed data derived by us in whole or part from User Data that does not include your personal information (“Processed Data”) shall be the exclusive property of SWNS, and nothing herein shall limit our use or exploitation thereof.
You acknowledge and agree that we have the right, but do not have the obligation, to access, archive or monitor metadata generated by your activity in using the Services, including as reasonably necessary to operate, maintain, improve and develop the Services and provide the Services to you or other Users, including to ensure service quality, to evaluate and maintain the Services and the security thereof, and to evaluate compliance with this Agreement, applicable SWNS rules or policies (“Activity Metadata”).
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, please notify us.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES (AND ANY RELATED CONTENT) IS SOLELY AND ENTIRELY AT YOUR OWN RISK AND THAT THE SERVICES (AND ANY RELATED CONTENT) ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SWNS, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, OUTSIDE CONTRIBUTORS, THIRD-PARTY PROVIDERS, CONTRACTORS, SUPPLIERS, LICENSORS, ADVERTISERS AND AGENTS (COLLECTIVELY, THE “SWNS ENTITIES”) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE
THE SWNS ENTITIES DO NOT WARRANT AND ACCEPT NO LIABILITY THAT YOUR USE OF THE SERVICES AND/OR ANY CONTENT OBTAINED THEREBY WILL BE COMPLETE, ADEQUATE, TIMELY, ACCURATE, UNINTERRUPTED, ERROR- FREE OR SECURE, OR THAT THE SERVICES OR THE SERVERS ON WHICH THE SERVICES ARE HOSTED ARE FREE OF VIRUSES, WORMS, MALICIOUS CODE, TROJAN HORSES, MALWARE OR OTHER HARMFUL COMPONENTS. THE SWNS ENTITIES DO NOT WARRANT AND ACCEPT NO LIABILITY FOR ANY SOFTWARE DOWNLOADED FROM, OR USED AS A COMPONENT OF, THE SERVICES. NO OPINION, ADVICE OR STATEMENT OF THE SWNS ENTITIES, WHETHER PROVIDED THROUGH THE SERVICES OR OTHERWISE, SHALL CREATE ANY WARRANTY. SWNS FURTHER DISCLAIMS ALL WARRANTIES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, AND SWNS DOES NOT MAKE ANY GUARANTEE OR WARRANTY AS TO ANY RESULTS (INCLUDING, BUT NOT LIMITED TO, ANY INVESTMENT RESULTS, RETURNS, PERFORMANCE OR OTHER OUTCOMES) THAT MAY BE OBTAINED FROM THE USE OF, IN CONNECTION WITH OR IN FULL OR PARTIAL RELIANCE UPON, THE SERVICES.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SERVICES.
10. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT THE SWNS ENTITIES ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, THE SERVICES AND/OR ANY CONTENT CONTAINED THEREIN, FOR ANY LOST PROFITS, LOSS OF USE OR OTHER ECONOMIC ADVANTAGE OR LOSS OF DATA, WHETHER SUCH DAMAGE IS FORESEEABLE OR NOT AND WHETHER OR NOT THE SWNS ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR AVOIDANCE OF DOUBT, DAMAGES ARISING UNDER THE SECTION ENTITLED “INDEMNIFICATION” (INCLUDING, BUT NOT LIMITED TO, DAMAGES TO WHICH A PARTY IS ENTITLED TO INDEMNIFICATION UNDER SUCH SECTION THAT SUCH PARTY SUFFERS IN CONNECTION WITH THIRD-PARTY CLAIMS FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES) ARE DEEMED TO BE DIRECT DAMAGES OF THE INDEMNIFIED PARTY. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING IT. YOU AGREE THAT, WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SWNS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION — WHETHER IN CONTRACT, TORT OR OTHERWISE — EXCEED THE TOTAL AMOUNT YOU PAID TO US FOR ACCESS TO AND USE OF THE SERVICES DURING THE CURRENT CALENDAR YEAR OF YOUR SUBSCRIPTION.
The commencement of any action or proceeding on any claim regarding the Services must be brought by you within one (1) year from when the claim arose. The foregoing limitation shall not apply to actions brought by you for indemnification.
You agree to indemnify, defend and hold harmless the SWNS Entities, their current and former officers, directors, employees, agents and representatives and their successors and assignees from and against any and all liabilities, claims (including, but not limited to, third-party claims), damages, losses, costs (including reasonable attorneys’ fees), or other expenses associated with or incurred as a result of or from:
- Your breach of your warranties, representations and obligations under this Agreement;
- Your failure to perform in accordance with this Agreement;
- Your use of the Services in any way other than its normal way or in a way not required or recommended by us;
- Your violation of the rights of any third party;
- Your registration or use of a User Account; or
- the actual or alleged infringement of any third-party proprietary or intellectual property right arising out of the unauthorized use of the Services.
If any Service which is subject to this indemnity is claimed, alleged or determined to infringe a patent issued to, or a copyright registered by, or either owned by or licensed to, any third party, SWNS shall have the right and option to modify the Services to avoid such infringement. If, in our sole opinion, such modification cannot practicably be accomplished to avoid such infringement, we shall have the right to terminate this Agreement without liability on the part of any SWNS Entity to you. In the event your purchase of the Services is terminated under this paragraph, we will refund to you the full price for any unused portion of such Service. In such an event, SWNS shall have the right in our sole discretion to elect to defend against or to settle any such third-party claim or third-party suit. You shall, at SWNS’s request, but at our expense, cooperate with us and provide assistance and information with respect to any such claim or suit. We shall have the right to select counsel, at our expense, to defend against any such claim or suit. If you shall also elect to be represented by your chosen counsel, you shall pay the fees and expense of such counsel. You must receive SWNS’s prior written consent regarding, and in advance of, any related settlement.
This defense and indemnification obligation shall survive this Agreement and your use of the Services.
Without limiting the foregoing, SWNS may terminate this Agreement immediately for any or no reason and with or without notice to you (including by terminating your User Account, Credentials and/or access to any Service) if: (i) SWNS reasonably believes that the Services are being used in violation of this Agreement or applicable law; (ii) SWNS believes your use of any Service interferes with the normal operations of the Service or creates any threat to the security of the Service, or the Content of any other User of the Service; (iii) SWNS becomes aware of what it, in its sole discretion, deems a credible claim that the Service or any portion thereof infringes upon the intellectual property rights of a third party; (iv) SWNS is required to do so by law; or (v) in the event you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any Fees payable to SWNS. SWNS reserves our right to dispute any chargeback. For the avoidance of doubt, if you purchase the Services which are sold together as a solution or bundled package of Services, any termination relating to any one Service or bundled package will terminate all Services included in such solution or bundled package, provided, however, that we may, in our sole discretion and subject to your agreement to be bound by this Agreement and to pay the applicable Fees, allow you to convert certain Services included in the bundled Services to stand-alone Services.
Without limiting Section 7(C), you may terminate the Agreement at any time, except that such termination does not relieve you from your obligation to pay any Fees for the Services for the remainder of the applicable Term.
- EFFECT OF TERMINATION
Upon the effective date of termination, SWNS will no longer provide the Services to you, any licenses granted to you will immediately terminate, and you must cease using such Services immediately, and all rights and obligations of the parties hereunder shall terminate, except for any terms, any rights or obligations in the Agreement, which, by its express terms or nature and context is intended to survive expiration or termination of this Agreement, shall survive expiration or termination of this Agreement.
User agrees that if their User Account is so terminated pursuant to Sections 12(A)(i)-(iii), the User will not attempt to establish a new User Account or otherwise engage in infringing our copyrights or other intellectual property rights under any name, real or assumed.
In order to comply with applicable law or other recordkeeping practices in the ordinary course of our business, or to otherwise enforce our rights under this Agreement, we may retain indefinitely for our records a copy of any and all User Data. We are not responsible for maintaining any records on your behalf.
13. GOVERNING LAW; ARBITRATION; CLASS ACTION WAIVER
This Agreement is governed in accordance with English law, and you agree that any dispute, controversy, claim or action relating to or arising under this Agreement, the Services or a breach of any User’s User Data, will be subject to the non-exclusive jurisdiction of the courts of England and Wales.
BINDING ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by final binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The number of arbitrators shall be one. The place of arbitration shall be New York City, New York, United States. By entering into this Agreement, the parties are waiving all rights to have their disputes covered by this Agreement heard or decided by a jury or in a court trial and the right to pursue any class or representative claims against each other in court, arbitration, or any other proceeding. The arbitrator shall have no jurisdiction or authority to compel any class or collective claim, or to consolidate different arbitration proceedings with or join any other party to an arbitration between you and SWNS. The arbitrator, and not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of dispute between the parties.
CLASS ACTION WAIVER. THE PARTIES FURTHER WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
No waiver of any provision of this Agreement is effective unless it is in writing and signed by an authorized representative of SWNS. Our remedies under this Agreement are cumulative and not alternative, and the election of one remedy for a breach does not preclude the pursuit of other remedies. The failure of SWNS to require your performance of any Agreement provision does not affect the full right to require such performance at any time in the future. The waiver by SWNS of any rights arising out of any breach of any Agreement provision shall not be taken or held to be a waiver of the provision itself. Any failure by SWNS to enforce any of its rights under this Agreement does not constitute a waiver of such right.
No party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of any rights arising out of a breach of this Agreement will constitute a waiver of rights relating to any prior or subsequent breach of this Agreement.
If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law. This Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible, consistent with applicable law and consistent with the original intention of the parties, and the remaining terms and provisions will remain in full force and effect.
- FORCE MAJEURE
Under no circumstances shall SWNS be held liable for any cessation, interruption, delay or failure in performance of the Services or any obligations under this Agreement resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, but not limited to, Internet failures, computer equipment failures, telecommunication equipment failures, failures of internet service providers (ISPs) or cloud-hosting providers, other equipment failures, electrical power failures, strikes, labor disputes, lockouts or boycotts, riots, terrorism, insurrections, civil disturbances, shortages of labor or materials, hurricanes, earthquakes, fire, floods, storms, natural disaster, explosions, acts of God, armed conflict, war, governmental actions, orders of domestic or foreign courts or tribunals.
- ENTIRE AGREEMENT
This Agreement, as well as any additional SWNS agreements, terms and conditions, rules, policies and agreements, together with all modifications thereto, constitute the entire agreement between you and SWNS concerning your use of the Services and any other subject matter related to this Agreement. This Agreement supersedes and governs all prior proposals, agreements or other communications between you and SWNS (including, but not limited to, any prior versions of this Agreement). You may not waive, modify or supplement this Agreement, in whole or in part, except by written permission or amendment by SWNS.
- TITLES AND HEADINGS; INTERPRETATION
The titles and headings of this Agreement are inserted for ease of reference only and do not affect in any way the meaning or interpretation of this Agreement. Also, in all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender and number as the text of this Agreement may require.
You may not assign or transfer, either directly or through a third party, this Agreement or any of its interests, rights or obligations hereunder, without the prior written consent of SWNS. Any attempted assignment in violation of the foregoing provision will be null and void and of no force or effect whatsoever. We may assign our rights and obligations under this Agreement and may engage subcontractors or agents in performing our duties and exercising our rights hereunder, without notice to you or your consent. Where applicable, this Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between you and SWNS. No party has the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever. The relationship between you and SWNS is limited to the responsibilities and obligations of both parties as established in this entire Agreement.
- NO THIRD-PARTY BENEFICIARIES
Unless otherwise provided in the Agreement, you acknowledge and agree that nothing herein, express or implied, is intended to nor is to be construed to confer upon or give to any third party or person, other than you, any interests, rights, remedies or other benefits conveyed to you herein.
SWNS may provide notifications, whether such notifications are required by law or are for marketing, to disclose changes or additions to our Services, or for other business-related purposes, to you via email associated with your User Account, written or hard copy notice, or through conspicuous posting of such notice on our Services. We reserve the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to any email address you provide us.
All mail notices from SWNS to you are deemed effective when: (i) sent by certified mail, return receipt requested or by Federal Express or other recognized overnight delivery service to your last known mailing address; (ii) sent via email to the email address associated with your User Account; or (iii) posted on the login page of the Website and/or any of the applicable pages linked thereto and immediately after you login to the Website. When you provide contact information to SWNS, you agree that we may use this information to contact you in any format or manner we choose and that we may rely on contact information provided by you to us. SWNS may, but has no obligation to, send a single notice by various means of delivery (e.g., email, certified mail or express mail). In no event shall SWNS be liable to you for choosing to send notice in one manner or format over another.
You shall give notice to SWNS by contacting us via email at [email protected]
If you are a California resident, please be advised that you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
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