1. Services Overview
Swapcard works with professional event organizers (each, an Organizer) to enable Organizers to, through the Services, create digital experiences for their events (each, an Event). Through the Services, an Organizer may create and personalize an event page and content sharing and networking mobile and web applications that are specific to an Event (each, an Event Platform), and may make any Event Platform available to natural persons who are registered and/or who might be interested in the applicable Event (Attendees) and to businesses taking part in the applicable Event (Exhibitors).
If you are an Organizer, then your use of the Services is also subject to the Organizer Terms (www.swapcard.com/legal/terms-organizer), which are incorporated by reference into these Terms as if set out in full in these Terms. In the event of any conflict or inconsistency between the terms and conditions of these Terms and the Organizer Terms, the Organizer Terms will control.
To use the Application or any other part of the Services, you must be at least 18-years old. By agreeing to these Terms, you represent and warrant to us that: (1) you are at least 18-years old; (2) you are either (a) an Attendee or (c) an individual accepting these Terms on behalf of an Organizer or Exhibitor with the authority to bind Organizer or Exhibitor (as applicable) to these Terms, and you agree on behalf of Organizer or Exhibitor (as applicable) to be bound by these Terms; (3) you have not previously been suspended or removed from the Services; and (4) your registration and your use of the Services are in compliance with any and all applicable laws and regulations.
3. Accounts and Registration
In order to use the Services, you must register for an account on the Services (your Account). The process for setting up your Account varies depending on whether you are an Organizer, Attendee, or Exhibitor as follows:
- If you are an Organizer, then your Account may have already been created by Swapcard. If so, you should have received an email or other notification from Swapcard regarding your Account. If you have not received an email or other notification from us, then you visit studio.swapcard.com/join to create your Account by providing us with some information about yourself through the Services.
- If you are an Attendee or Exhibitor, then your Account may have already been created by the Organizer. If so, you should have received an email from Swapcard regarding your Account. If you have not received an email from us, then you must complete a registration form in the Event Platform and provide us with some information about yourself, notably your name and email address.
The email address you provide Swapcard will be your username for your Account, and the information you provide us in order to set up and update your Account constitutes proof of your identity. You guarantee to Swapcard that the information provided by you to Swapcard is complete, accurate, and up to date and is not in any way misleading, and you agree to notify Swapcard immediately if any information provided by you is no longer complete, accurate, and up to date or has become misleading.
When you register for or attempt to login to your Account for the first time, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your Account and password, and you accept responsibility for all activities that occur under your Account. Any logins to the Event Platform using your username and password will be deemed to have been affected by you.
If you believe that your Account has been used without your knowledge or is otherwise no longer secure, then you must immediately notify us at https://www.swapcard.com/support?entity=attendee. In which case, Swapcard is entitled to take measures it deems appropriate in its discretion to protect your Account, the Event Platform, and the Services.
Limited License. Subject to your complete and ongoing compliance with these Terms, Swapcard grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of the Event Platform obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Services.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Services; (b) make modifications to the Services; or (c) interfere with or circumvent any feature of the Event Platform or the Services, including any security or access control mechanism. If you are prohibited under applicable law from using the Services, you may not use it.
Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to any Event Platform or the Services (Feedback), then you hereby grant Swapcard an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve any Event Platform or the Services and create other products and services.
5. Intellectual Property
The Services are owned and operated by Swapcard. The visual interfaces, graphics, design, compilation, content, of any kind (including templates, text, images, visuals, music, logos, trademarks, etc.), information, data, databases, computer code (including source code or object code), products, software, systems, structure, infrastructure, services, and all other elements of the Services (Materials) provided by Swapcard are protected by intellectual property, database producer rights in force, and other laws. All Materials included in the Services are the property of Swapcard or its third-party licensors. Except as expressly authorized by Swapcard, you may not make use of the Materials or otherwise dismantle, decompile, decode, extract, reuse, copy, reproduce, represent, disseminate, or use any or all of the Materials. Swapcard reserves all rights to the Materials not granted expressly in these Terms and may take legal action to enforce its rights.
6. Your Responsibilities and Obligations
Without prejudice to the other obligations contained in these Terms, you represent and warrant to Swapcard and otherwise covenant as follows:
- When using the Services, you will comply with these Terms and all applicable laws, rules, and regulations in force, and you will not infringe or cause Swapcard to infringe the rights of any third party or public order;
- You alone are responsible for your use of the Services;
- You will provide Swapcard with all information necessary to properly deliver the Services to you as contemplated under these Terms;
- You alone are responsible for your behavior at any Event venue, and you will comply with any terms and conditions stipulated by an Event venue; and
- You alone are responsible for your use of the Services and for any contacts you may forge with and any information you provide to any Organizer, Attendee and/or Exhibitor (as applicable) that you connect with through the Services.
7. Your User Content
User Content Generally. Certain features of the Services may permit users to upload content to the Services, including documents, details, data, information, messages, photos, video, images, folders, data, text, and other types of works (collectively, User Content) and to publish User Content on the Services. You retain any copyright and other proprietary rights that you may hold in the User Content that you make available through the Services.
Limited License Grant to Swapcard. By providing User Content to or via the Services, you grant Swapcard a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
Limited License Grant to Other Users. By providing User Content to or via the Services to other users of the Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services.
User Content Representations and Warranties. Swapcard disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Services. By providing User Content via the Services, you affirm, represent, and warrant to us that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Swapcard and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Swapcard, the Services, and these Terms;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) cause Swapcard to violate any law or regulation;
- your User Content could not be deemed by a reasonable person to be objectionable, profane, defamatory, abusive, indecent, pornographic, harassing, racist, obscene, shocking, violent, xenophobic, revisionist, threatening, embarrassing, hateful, or otherwise inappropriate;
- your User Content is not, and does not propose or promote activities that are, illegal, fraudulent, false, or misleading; and
- your User Content is lawful, does not contravene public order, morality or the rights of third parties, does not breach any legislative or regulatory provision, and cannot in any way result in civil or criminal liability for Swapcard.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Swapcard may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Swapcard with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Swapcard does not permit copyright-infringing activities on the Services.
8. Prohibited Conduct
BY USING THE SERVICES, YOU AGREE NOT TO:
- use the Services for any illegal or fraudulent purpose or in violation of any public order or local, state, national, or international laws, rules or regulations;
- harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Services;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property rights or financial, business or moral interests;
- interfere with security-related features of the Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Services or any user’s enjoyment of the Services, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Services; (c) collecting personal information about another user or third party without consent; (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services; (e) interrupting, suspending, slowing down, or preventing Services continuity; (f) hacking into Swapcard's systems supporting the Services; (g) hijacking the Application's system resources; (h) taking any actions that would place a disproportionate load on Swapcard's infrastructure; or (i) breaching the security and authentication systems of the Services;
- hack into any third party’s IT systems or otherwise violate the integrity or security of or harm, control, interfere with or intercept all or part of a third party's IT systems;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Services account without permission, or falsifying your age or date of birth;
- improve the search engine optimization of a third party’s website, sell, cede or otherwise transfer the access granted under these Terms or any Materials (as defined above) or any right or ability to view, access, or use any Materials, or otherwise make money from all or part of your access to the Services (including any Materials and information hosted on or shared through the Services); or
- attempt to do any of the acts described in this Section 8 or assist, incite or permit any person into engaging in any of the acts described in this Section 8.
9. Modification of Terms
We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Services. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Any other amendments to these Terms, other than those permitted in this Section 9, must be in writing and signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Term, Termination, and Modification of Services
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Services, and ending when terminated as described below.
Termination. If you violate any provision of these Terms, your authorization to access the Services and these Terms automatically terminate, and Swapcard reserves the right to take all appropriate measures and instigate any legal proceedings against you and to notify and cooperate the relevant authorities where applicable. In addition, unless you are an Organizer that has separately contracted with Swapcard regarding your use of the Services, Swapcard may, at its sole discretion, terminate these Terms or your Account on the Services, or suspend or terminate your access to the Services, at any time for any reason or no reason, with or without notice. If you are not an Organizer that has separately contracted with Swapcard regarding your use of the Services, then you may terminate your Account and these Terms at any time by contacting customer service at https://www.swapcard.com/support?entity=attendee.
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Services; (b) you will no longer be authorized to access your Account or the Services and your Account will automatically be deleted; and (c) any provisions that by their nature are intended to survive termination of these Terms will survive.
Modification of the Services. Swapcard reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. Swapcard will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.
To the fullest extent permitted by law, you are responsible for your use of the Services, and you will defend and indemnify Swapcard, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the Swapcard Entities) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
12. Disclaimers; No Warranties
THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SWAPCARD DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SWAPCARD DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SWAPCARD DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR SWAPCARD ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE SWAPCARD ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND YOUR DEALING WITH ANY OTHER SERVICES USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Swapcard does not disclaim any warranty or other right that Swapcard is prohibited from disclaiming under applicable law.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SWAPCARD ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SWAPCARD ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SWAPCARD ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Third-Party Terms
Third-Party Services. Swapcard may provide tools through the Services that enable you to export information, including User Content, to Organizers, Attendees, Exhibitors, advertisers, professionals, salespersons (including potential partners) and other third-party services (collectively, Third-Party Services). By using one of these tools, you agree that Swapcard may transfer that information to the applicable Third-Party Services. Third-Party Services are not under Swapcard’s control, and, to the fullest extent permitted by law, Swapcard is not responsible for any Third-Party Services’s use of your exported information. Swapcard will not take part in any disputes whatsoever between you and any Third-Party Services provider, particularly concerning Event participation, guarantees, declarations or any other obligations whatsoever to which Third-Party Services providers may be bound.
Linked Websites. The Services may contain links to third-party websites. Linked websites are not under Swapcard’s control, and Swapcard is not responsible for their content, adverts, products, services or availability (including websites run by Swapcard’s third-party partners). Third-party websites are governed by their own terms and conditions of use.
Third-Party Software. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (Third-Party Components). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
Swapcard, in collaboration with the Organizer, reserves the right to include in any communication with you or on any portion of the Event Platform or the Services advertising and promotional messages at its discretion.
16. Swapcard Entity, Governing Law and Venue
If you are inside the United States or Canada, then the Services are being provided to you by Swapcard Inc. (Swapcard US) and your use of the Services constitutes an agreement by Swapcard US and by you to be bound by these Terms. Swapcard US is a Delaware corporation headquartered at 721 4th Avenue #257, Kirkland, Washington 98033 USA, and you may contact Swapcard US by sending correspondence to that address or by emailing us at legal@swapcard[.]com. These Terms are governed by the laws of the State of New York without regard to conflict of law principles, and the only courts competent to deal with any dispute between you and Swapcard US that may arise about their validity, interpretation or performance, unless there is a contrary and mandatory procedural requirement, will be the state courts and federal courts located within New York County, New York for resolution of any lawsuit or court proceeding permitted under these Terms, and you and Swapcard US submit to the personal and exclusive jurisdiction of those courts.
If you are in the European Union or anywhere else in the world, then the Services are being provided to you by Swapcard Corporation (Swapcard EU) and your use of the Services constitutes an agreement by Swapcard EU and by you to be bound by these Terms. Swapcard EU is a SAS (simplified joint stock company) registered on Paris' trade and corporate register under number 790 356 760, headquartered at 6 rue de Paradis in Paris (75010), and you may contact Swapcard EU by sending correspondence to that address or by emailing us at email@example.com. These Terms are governed by the laws of France without regard to conflict of law principles, and the only court competent to deal with any dispute between you and Swapcard EU that may arise about their validity, interpretation or performance, unless there is a contrary and mandatory procedural requirement, will be the Paris, France Tribunal de commerce (commercial court).
17. Dispute Resolution for U.S. Users
If you an Attendee or Exhibitor inside the United States, then the Services are being provided to you by Swapcard US, and you agree that any disputes between you and Swapcard US arising under these Terms will be resolved by binding, individual arbitration as follows:
- Generally. In the interest of resolving disputes between you and Swapcard US in the most expedient and cost effective manner, and except as described below, you and Swapcard US agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SWAPCARD US ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Nevertheless, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section within 30 days after the date that you agree to these Terms by sending a letter to Swapcard Inc., Attention: Legal Department – Arbitration Opt-Out, 721 4th Avenue #257 Kirkland, WA 98033 USA that specifies: your full legal name, the email address associated with your Account, and a statement that you wish to opt out of arbitration (Opt-Out Notice). Once Swapcard US receives your Opt-Out Notice, this Section will be void and any action arising out of these Terms will be resolved as set forth in Section 18. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and Swapcard US will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules (collectively, AAA Rules) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Swapcard US. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (Notice of Arbitration). Swapcard US’s address for Notice is: Swapcard Inc.,721 4th Avenue #257 Kirkland, WA 98033 USA. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (Demand). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Swapcard US may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Swapcard US must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Swapcard US in settlement of the dispute prior to the award, Swapcard US will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- Fees. Payment of any fees in connection with arbitration will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Swapcard US for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND SWAPCARD US AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Swapcard US agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Swapcard US makes any future change to this arbitration provision, other than a change to Swapcard US’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Swapcard US’s address for Notice of Arbitration, in which case your account with Swapcard US will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If the mutual class action waiver set forth in this Section or the entirety of this Section is found to be unenforceable, or if Swapcard US receives an Opt-Out Notice from you, then the entirety of this Section will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.
Additional Terms. Your use of the Services are subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services, which are all incorporated by this reference into, and made a part of, these Terms.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
Consent to Electronic Data as Proof of Admittance. If you are outside of the United States, then you acknowledge and agree that: (a) data collected by the Application and on Swapcard's IT equipment is a true reflection of the transactions taking place under the scope of this agreement; and (b) this data constitutes the main mode of proof admitted by the parties.
No Support. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.
Notice Regarding Apple. This provision applies to your use of the Application if you are using the Application on an iOS device. You acknowledge that these Terms are between you and Swapcard only, not with Apple Inc. (Apple), and Apple is not responsible for the Services or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (1) product liability claims; (2) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (3) 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 the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and 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 a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.