TERMS OF SERVICE AND CONDITIONS OF USE
These Terms of Service and Conditions of use (“Terms” or “Agreement”) describe and govern Your access to and use of Swurveys Inc.’s (“Swurveys”) services, API and/or website. Swurveys’ website (“Site”) is located at www.swurveys.com and contains the most recent versions of Swurveys’ Terms. Please check the Site periodically for updates to these Terms.
The Services (defined in Section 1.6 below) are provided by, and You are contracting with, Swurveys. There may be additional terms and policies that apply, depending on which Services You use. You indicate Your acceptance of these Terms by using the Site or any of the Services, or by clicking or tapping on the appropriate button on Your phone, PC or other device.
We may amend the Terms at any time at our discretion. Future performance by Us of our obligations under the Terms is sufficient consideration for any such amendment. We are not obligated to provide You with notice but may, when commercially reasonable, provide written notice of any amendments by email or by posting on our Site. If You do not agree to such amendments, You should stop use.
1.1 Content: All of Your registration information and other information provided by You in connection with Your use of the Services (defined in Section 1.6), including without limitation: information, content, data, messages, text, files, images, photos, video, sounds, other materials, and any of the foregoing provided by You to any End-User (defined in Section 1.4) via Your or their use of the Services; this includes the Survey (defined in Section 1.6) You create through the Services.
1.2 Credit(s): Credits are the currency on the Swurveys website that You will use to finance Paid Surveys (defined in Section 1.6). Upon setting up Your account, You will be able to create two types of Surveys (defined in Section 1.6). To create a Paid Survey, You will be prompted to indicate the number of anticipated respondents and pay enough money to equal the number of Credits required for Your specified response rate. The Credits have no monetary value outside of Swurveys’ Site. The exchange rate between money and Credits is subject to change at Swurveys’ discretion without notice. For the most recent exchange rate, review Your account.
1.3 Customer/You(r): A Customer is one who uses Swurveys’ Services to direct Surveys (defined in Section 1.6) to an End-User(s) (defined in Section 1.4). None of the references to You or Your, unless otherwise stated in these Terms, refer to the End-User. If You will be using the Services on behalf of an organization, You represent that You have the authority to do so, and agree to these Terms on behalf of that organization. In such case, “You” and “Your” will refer to that organization.
1.4 End-User: Any person or entity other than You with whom You, Your Affiliates, or Swurveys (on Your behalf) interact by sending, transmitting, or delivering a Survey You generated by using the Service or API. Swurveys’ business relationship is entirely with the Customer(s) purchasing and/or using the Services to generate Content for distribution to End-Users; Swurveys maintains no responsibilities to and receives no direct compensation from End-Users.
1.6 Services: Swurveys provides a web-based platform for You to create and manage a questionnaire, quiz, or test (“Survey”) to be sent by You to End-Users, along with the storage, analysis, and collection of data from the End-Users. Swurveys at no time will directly submit the Surveys You create to the End-User unless the End-User specifically requests the Survey from Swurveys. Upon creating a Survey, Swurveys will provide You with a link to submit to End-Users or a phone number End-Users can text to receive the Survey from Swurveys. There are two Survey types: Paid Surveys are those for which Credits are exacted per response and include specific features; Free Surveys are those that are freely available without any cost.
1.7 Swurveys/We/Us: Swurveys, Inc. and any of its associated employees, affiliates, agents, and/or representatives authorized to act under these Terms.
1.8 Wallet: The repository associated with your account wherein all of your Credits are stored.
Authorization by Swurveys to use our Site and Services is void where prohibited. By using our Site and Services, You represent and warrant that You have the right, authority, and capacity to enter into these Terms and to abide by all of the provisions.
2.1 If You are an individual, You may only use the Services if You have the power and authority to form a contract with Swurveys. None of the Services are intended for use by children under the age of thirteen. Swurveys does not target its offerings toward, and does not knowingly collect, any PII from children under 13 years of age. We will promptly delete any PII that we learn was provided by a Customer or End-User under 13 years of age. If You are under the age of thirteen (13) or do not have the power to form a contract with Swurveys, You may not use the Services. We recommend that parents and guardians directly supervise any use of the Site or Services by minors.
2.2 If You are not an individual, You warrant that You are validly formed and existing under the laws of Your jurisdiction of formation and that You have duly authorized Your agent to bind You to these Terms.
2.3 If You are located in a country embargoed by the United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, the U.S. Treasury Department’s List of Specially Designated Nations, or the U.S. Federal Bureau of Investigation’s Terrorist Screening Database, You are not permitted to use the Services.
2.4 You must agree to and comply with these Terms in full, without exception.
2.5 You must provide true, complete, and up to date contact information to Swurveys and consent to Swurveys using such information as its primary means of contacting You. Swurveys is not responsible for any communication failures resulting from Your non-compliance with this provision.
2.6 If You are barred by any applicable laws from using Swurveys or its Services, You must refrain from doing so.
By using Swurveys, You represent and warrant that You meet all the requirements listed above and that You will not use Swurveys in a way that violates any laws or regulations. Swurveys reserves the right to refuse service, close accounts, and change eligibility requirements at any time without prior notice.
3.1 Swurveys’ business relationship is entirely with the Customer(s) purchasing and/or using the Services to generate Content for distribution to End-Users; Swurveys maintains no responsibilities to and receives no direct compensation from End-Users.
3.2 By participating in a Survey or contacting Swurveys through a Customer-established phone number to receive a Survey, the End-User automatically consents to these Terms in full. These Terms are binding upon all End-Users.
3.3 The End-Users’ participation in a Survey or contacting Swurveys to receive a Survey constitutes the End-User consenting to Swurveys’ use, distribution, reproduction, and application of End-User-generated data and information.
3.4 The End-User has no proprietary rights in the data, information, or Services. All End-Users acknowledge and accept that by responding to a Survey or requesting a Survey from Swurveys the End-Users thereby consent to Swurveys owning the Survey, transmission, communication responses, inputs, and data.
- PROPRIETARY RIGHTS
4.1 As between the Parties, You shall own all Your Content subject to the following limitations and any others specified in this Agreement:
- All Customers upon using the Site or Services automatically assign all rights, interest, and ownership in the metadata of their Surveys to Swurveys. Metadata includes but is not limited to velocity of swipes, drop-out rates, completion rates, etc.
- All Customers upon using the Site or Services to create a Paid Survey automatically grant Swurveys a nonexclusive, worldwide, and royalty-free right and license to use, copy, and create derivative works from the Survey and Content. For Free Surveys, this license includes the right for Swurveys to publish, reproduce, and display Content, Surveys, transmissions to End-Users, and inputs from End-Users. For Paid Surveys, this license shall not include the right for Swurveys to publish, reproduce, or display the Content, surveys, transmissions to End-Users, or inputs from End-Users unless the Customer provides written permission for such publication, reproduction, or display.
- All Customers acknowledge and agree that Swurveys shall have sole and exclusive ownership of all aggregations, data visualizations, and data analytics Swurveys creates, commissions, or develops from Surveys, Content and End-User inputs.
- All End-Users acknowledge and accept that by responding to a Survey, transmission, or communication regarding the Services or Site, they hereby consent to Swurveys owning the Survey, transmission, communication responses, inputs, and data.
4.2 Except for the limited rights and licenses expressly granted in this Agreement, no other license is granted to You, no other use is permitted, and We shall retain all right, title and interest in and to the Services and all updates and modifications thereto (including all intellectual property and proprietary rights embodied therein). Swurveys is the sole and exclusive owner of all of its intellectual property, including patents, trademarks, copyrights, and trade secrets. Neither these Terms nor Your use of the Services grants You ownership in the Services or the content You access through the Services. These Terms do not grant You any right to use Swurveys’ trademarks or other brand elements unless You are using them in relation to the Services Swurveys provides and for no other purpose. This is an Agreement for services only and, except as expressly set forth herein, You are not granted a license to any software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, implication, or otherwise.
4.3 You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of our Site and Services. You will not remove any proprietary notices or labels from the Site or Services; modify, translate, or create derivative works based on the Site or the Services; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site or Services.
4.4 You are responsible for Your Content, and You must ensure that You have all the rights and permissions needed to use that Content in connection with the Services. Swurveys disclaims any responsibility over the validity of Your ownership, use, transmission, or generation of Content information, graphics, or materials. We are not responsible for any actions You take with respect to Your Content, including sharing it publicly. Do not use, create, generate, or upload Content into our Services platform until You have first obtained the permission of any third-party owners, or are otherwise authorized by law to do so.
- ACCOUNT MANAGEMENT
5.1 If You have created an account with Swurveys, You are responsible for safeguarding Your password and any other credentials used to access that Account. You, and not Swurveys, are responsible for any activity occurring in Your account (other than activity that Swurveys is directly responsible for which is not performed in accordance with Your instructions), whether or not You authorized that activity. If You become aware of any actual or suspected unauthorized access to Your Account, You should notify Us immediately. Accounts may not be shared and may only be used by one Customer per Account.
5.2 Swurveys occasionally sends notices to the email address registered with Your account. You must keep Your email address and, where applicable, Your contact details and payment details associated with Your account current and accurate. Accounts are controlled by the entity or individual whose email address is registered with the account.
5.3 You are solely and independently responsible for maintaining, protecting, and making backups of Content; Swurveys does not back up Content, information, or Surveys. To the extent permitted by applicable law, Swurveys will not be liable for any failure to store, or for loss or corruption of, Content.
6.1 In order to set up an account with Us and create Paid Surveys, You must provide Swurveys with accurate and complete billing information. By submitting such information, You give Us permission to charge via such payment method all charges You incur.
6.2 Upon submitting valid payment information, you will receive Credits that will be stored in Your account Wallet. Once You create Paid Surveys, Swurveys will charge a certain number of Credits per response, deducting the amount from Your Wallet. Should You select the option to automatically refill Your Wallet once the Credits are depleted, We will charge Your stored payment information for the pre-set amount You have selected. By opting into the automatic refill, You consent to Our access of this information and the charging of the fees.
6.3 We may revise the value of Credits, the number of Credits required for certain actions, and the exchange rate between money and Credits for the Services at any time at our own discretion. The revisions and exchange rate changes will not apply retroactively.
6.4 At no point may You seek a refund of the Credits. All purchases of Credits are final. Upon termination of Your account, You will be waiving Your Credits and cannot be reimbursed for any unused Credits. Credits cannot be transferred, sold, redeemed for cash or in-kind exchanges, or refunded.
6.5 All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and You agree to bear and be responsible for the payment of all such charges, excluding taxes based upon our net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
- ANTI-SPAM POLICY AND PRACTICES
7.1 All uses of Swurveys’ Site and Services must comply with Swurveys’ Anti-Spam Policy.
7.2 Swurveys has a zero tolerance policy on its Site and Services being used for unsolicited email messages (“Spam”). All messages sent by means of the Site or the Services shall be in compliance with all federal, state, and local laws and regulations, as well as the Terms. Please review and comply with the CAN-SPAM Act of 2003 (“CAN-SPAM Act”), information about which may be obtained at this link to the Federal Trade Commission webpage: https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business. All communications You send regarding Your Use of the Site or Services must have opt-out or unsubscribe instructions linked to a working email address, webpage, or phone number that is monitored by You, and all such communications must be directed to recipients who agreed to receive Your communications. You are responsible for ensuring that Your use of the Site and the Services does not generate an unreasonable number of Spam or other complaints. We may terminate Your access to or use of the Site and the Services if We determine that Your level of Spam or other complaints is unreasonable, as determined by Us in our sole discretion. We will not share with You information about those recipients who complain about Your use of the Site or Services or file a Spam report against You.
7.3 We reserve the right without notice to take all measures of any nature (whether legal, technical, or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or campaigns from entering, utilizing or remaining within our network. Per the Indemnification language in these Terms (see Section 13), You will be solely responsible for any fines, sanctions, or legal actions brought against Swurveys resulting from Your violation of or non-compliance with anti-spam laws and regulations. You agree to indemnify Swurveys in full for any such fines, sanctions, or legal actions.
7.4 In Your use of the Site or Services, You shall represent Yourself or Your organization accurately and will not impersonate any other person, whether actual or fictitious. You agree that You are the sole or designated “sender” (as such term is defined in the CAN-SPAM Act) and any rules or regulations adopted under the Act. You must never represent in any emails, texts, transmissions, or other communications that You send End-Users that the email, text, transmission, or other communication is being sent by Swurveys or that Swurveys is the designated “sender.”
7.5 You must not use Swurveys to send Surveys or communications with false or misleading information. You agree that You shall not utilize the Site or Services to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Website operated for a commercial purpose; a “commercial electronic mail message” as defined in the CAN-SPAM Act) to any person who has opted out or otherwise objected to receiving such messages from You or another sender on whose behalf You may be acting. You represent and warrant that all communications You send or have sent in relation to Swurveys’ Site or Services will be in full and complete compliance with the CAN-SPAM Act.
- ACCEPTABLE USES
8.1. You must use the Services in compliance with, and only as permitted by, applicable law. You further agree to refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with Your use of Swurveys’ Sites or Services. You may not use our Site or Services for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
8.2 You are responsible for determining whether our Site or Services are suitable for You to use in light of any regulations, such as the Health Insurance Portability and Accountability Act (“HIPAA”), the Gramm-Leach-Bliley Act, or other laws. If You are subject to a particular regulation and You use our Site or Services, then We will not be liable if our Site or Services do not meet these requirements. You will be solely responsible for such compliance, unless Swurveys has agreed with You otherwise. You may not use the Services in a way that would subject Swurveys to these industry-specific regulations without obtaining our prior written agreement. For example, You may not use the Services to collect, protect, or otherwise handle “protected health information” (under 45 C.F.R. §160.103, U.S. federal regulations) without entering into a separate business associate agreement with Swurveys that permits You to do so.
8.3 You are responsible for Your conduct, Content, and communications with others while using the Services. By using our Site or Services You automatically represent and warrant that You will never engage in any of the following conduct:
- Interference with Our Technology, Networks, or Access:
- Using technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the Site or the Services that is not authorized by Us (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction, access to, or distribution of the Site or Services).
- Using any deep-link, page-scrape, robot, crawl, index, spider, offline reader, click spam, macro programs, internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, index, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Site or the Services for any unauthorized purpose.
- Using the Site or Services in a manner that Swurveys has determined in its sole discretion damages, disables, overburdens, impairs, or gains unauthorized access to the Site or the Services, including Swurveys’ servers, computer network, or accounts.
- Interfering with or disrupting the Site or any related websites or servers or networks connected to the Site or Services.
- Misusing our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that We provide.
- Probing, scanning, or testing the vulnerability of Swurveys’ systems or network without written authorization from Swurveys.
- Denying others access to or reverse engineering the Site or Services.
- Engaging in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for others. Swurveys will endeavor to notify You of any abusive or excessive usage to provide You with an opportunity to reduce such usage to a level acceptable to Swurveys.
- Fraudulent Account Practices:
- Setting up multiple accounts for any individual or organization in order to send substantially similar content unless You are part of a franchise.
- Purchasing, using, or accessing the Site or Services for the purpose of building a competitive product or service or for any other competitive purposes.
- Circumventing or attempting to circumvent any limitations that Swurveys imposes on Your account (such as by opening up a new account to conduct a Survey that We have closed for a Terms violation).
- Reselling or leasing the Services without written authorization from Swurveys.
- Malicious or Deceptive Transmission:
- Transmitting any viruses, malware, or other types of malicious software, or links to such software, through the Services.
- Using the Site or Services to attempt to collect PII of End-Users or other types of sensitive information.
- Using the Services to infringe the rights of others (including but not limited to third-party intellectual property rights) or commit an unlawful activity.
- Claiming that a Survey is anonymous when it is in fact not.
- Communicating in a manner that impersonates others when submitting, creating, or distributing the Surveys, communications, or transmissions to End-Users.
- Obscene, Offensive, Threatening, or Violent Communications:
- Displaying, publishing, or distributing material that exploits children under eighteen (18) years of age. Swurveys, upon learning of such use, will report You to law enforcement.
- Displaying, publishing, or distributing material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity, or that is obscene, lewd, excessively violent, harassing or otherwise offensive or incendiary. Included in this limitation is any material or Content that Swurveys interprets in its sole discretion to be advocating, threatening, or encouraging violence or terrorism against individuals, entities, or governments.
- Engaging in or promoting libelous, defamatory, or slanderous activity.
- Displaying, publishing, or distributing pornography or pornographic products.
- Engaging in or promoting the sale, distribution, or use of illegal substances.
8.4 Any violation of the use limitations in Section 8.3 is automatic grounds for termination from all use of Swurveys’ Site or Services, with Swurveys reserving the right to report such conduct to appropriate law enforcement agencies.
8.5 You may not imply or state, without Swurveys’ prior written consent, that Swurveys endorses, sponsors, or is affiliated with the purposes for which You use the Survey questions or responses. Nor may You ever represent in any emails, texts, transmissions, or other communications that You send End-Users that the email, text, transmission, or other communication is being sent by Swurveys or that Swurveys is the designated sender.
8.6 You acknowledge and agree that You are solely responsible for all Content posted on, transmitted through, or linked from the Service, including any Content created or provided by End-Users.
8.7 Although We have no obligation to monitor the Content provided by You or Your use of the Site and Services, You accept that We may (subject to our sole discretion) modify, prevent access to, delete, or refuse to display Content that We believe violates the law or these Terms, as well as monitor Your use of and conduct regarding our Site and Services. In no case does the aforementioned make Swurveys responsible or liable for Your compliance with any laws or obligations applicable to Your Content.
- WEBSITE PRIVACY
9.4 Swurveys may identify You (by name and logo) as a Swurveys customer on Swurveys’ Website and on other promotional materials. Any goodwill arising from the use of Your name and logo will inure to Your benefit.
9.5 You will not import or incorporate into any Content any PII, including that of End-Users. You will not use the Surveys, communications, or transmissions We provide through our Site or Services to collect or solicit PII.
9.6 Your use of the Site and Services must never post or disclose, or facilitate such posting or disclosing, of any PII or private information about anyone without his or her consent, including children under eighteen (18) years of age without their parents’ consent.
9.7 You may not: 1) attempt to reconstruct or ascertain the identify of any End-User from their responses to surveys; or 2) contact for any purpose (marketing or otherwise), or disclose the identity of, any End-User whose identity may be ascertainable from the responses to Survey questions.
9.8 Swurveys uses reasonable and appropriate methods to protect all financial information. Swurveys uses physical, electronic, contractual, and managerial safeguards to help protect the security and privacy of all of Your PII.
9.9 California Privacy Rights: California Civil Code Section 1798.83 permits California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please write to Us at the following address:
ATTN: Swurveys, Inc.
1100 NE Campus Parkway, Suite 200
UW Condon Hall, Campus Box 354625
Seattle, WA 98195
9.10 California Do Not Track Disclosure: Do Not Track is a privacy preference that website users can set in their web browsers. When an anonymous user turns on the Do Not Track signal, the browser sends a message to websites requesting them not to track the user. At this time, Swurveys does not respond to Do Not Track browser settings or signals. For information about Do Not Track, please visit www.allaboutdnt.org.
- SUSPENSION AND TERMINATION OF SERVICES
10.1 You may terminate Your account at any time by giving written notice to Swurveys. At such point, You release Swurveys of any and all obligation to store or maintain Your Surveys or Content.
10.2 Swurveys may delete Free Surveys in Your account without notice to You if they have not been accessed within twelve (12) months of their creation. Paid Surveys shall not be deleted without first providing notice to You and providing You the opportunity to access the Paid Survey.
10.3 Notwithstanding anything in the foregoing that may be interpreted to the contrary, Swurveys may limit, suspend, or stop providing the Services to You at its sole discretion if You fail to comply with this Agreement, or if You use the Services in a way that causes legal liability to Us or disrupts others’ use of the Services. We may also suspend providing the Services to You if We are investigating suspected misconduct by You.
10.4 If We suspend or terminate the Services You receive, We will endeavor to give You advance notice and an opportunity to export a copy of Your Content from that Service. However, there may be time sensitive situations where Swurveys may decide that We need to take immediate action without notice. We have no obligation to retain Your Content upon termination. If We stop providing the Services to You because You repeatedly or egregiously breach these Terms, We may take measures to prevent the further use of the Services by You, including blocking Your IP address.
10.5 Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the Parties shall cease, except that (a) all obligations that accrued prior to the termination (including without limitation all payment obligations) shall survive; (b) We may, but shall not be obligated to, delete Content; (c) any license to publish granted as a result of the use of a Free Trial Service shall continue; and (d) the provisions of this Agreement that by their nature should survive termination will survive termination. Following any termination or expiration of this Agreement, We reserve the right to delete Your account information and all Content immediately.
11.1 THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, SWURVEYS HEREBY DISCLAIMS (FOR ITSELF AND ITS AFFILIATES, SPONSORS, PARTNERS, SUCCESSORS, ASSIGNEES, LICENSORS, CO-BRANDERS AND THE RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES OF EACH) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR COMMON LAW, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
11.2 FOR OUR OWN OPERATIONAL EFFICIENCIES AND PURPOSES, SWURVEYS MAY FROM TIME TO TIME BACK UP DATA ON OUR SERVERS, BUT WE ARE UNDER NO OBLIGATION OR DUTY TO YOU TO DO SO UNDER THESE TERMS. IT IS YOUR SOLE DUTY AND RESPONSIBILITY TO BACK UP YOUR FILES AND DATA ON SWURVEYS’ SERVERS. UNDER NO CIRCUMSTANCE WILL SWURVEYS BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF YOUR FILES AND/OR DATA ON ANY SWURVEYS SERVER.
11.3 YOU ARE RESPONSIBLE FOR OBTAINING AND OPERATING ALL SYSTEMS NEEDED TO USE THE SERVICES, PROVIDING ALL CORRESPONDING BACKUP, RECOVERY AND MAINTENANCE SERVICES, AND ENSURING THESE ARE COMPATIBLE WITH THE SERVICES. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY FAILURE OF THE SITE, SERVICES, OR AGREEMENT DUE TO ANY CAUSE BEYOND OUR CONTROL AND WITHOUT OUR GROSS NEGLIGENCE, INCLUDING BUT NOT LIMITED TO: 1) ACTS OF CIVIL OR MILITARY AUTHORITY; 2) THEN CURRENT LAWS AND REGULATIONS AND CHANGES THERETO; 3) EMBARGOES, EPIDEMICS, WAR, TERRORIST ACTS, RIOTS, EXPLOSIONS, FIRES, FLOODS, STRIKES, BLACKOUTS, ENVIRONMENTAL DISTURBANCES, SEVERE WEATHER CONDITIONS; 4) HACKERS; 5) INABILITY TO SECURE PRODUCTS OR SERVICES OF OTHER PERSONS OR TRANSPORTATION FACILITIES; 6) ACTS OR OMISSIONS OF TRANSPORTATION OR TELECOMMUNICATIONS COMMON CARRIERS OR OVERLOADING OR SLOW-DOWNS OF THE INTERNET OR ANY THIRD-PARTY ISPS; 7) YOUR SYSTEMS; 8) YOUR, OR THIRD-PARTIES’ PRODUCTS, SERVICES, NEGLIGENCE, ACTS OR OMISSIONS; 9) SCHEDULED MAINTENANCE; 10) UNAUTHORIZED ACCESS OR BREACH BY THIRD-PARTIES; OR 11) ANY OTHER FORCE MAJEURE.
- LIMITATION OF LIABILITY
12.1 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL SWURVEYS (AND ITS AFFILIATES AND ITS SPONSORS, PARTNERS, SUCCESSORS, ASSIGNEES, LICENSORS, CO-BRANDERS AND THE RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES OF EACH) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM OR OTHER FORCE MAJEURE, INCLUDING WITHOUT LIMITATION GOVERNMENT RESTRICTIONS, WARS, INSURRECTIONS, STRIKES, NATURAL EVENTS, ETC.), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, EVEN IF SWURVEYS WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (D) ANY CONTENT YOU INPUT, TRANSMIT, OR DISTRIBUTE TO ANY END-USERS THROUGH OUR SITE OR SERVICES, (E) YOUR CONDUCT WHEN USING THE SITE OR SERVICES OR THE RESPECTIVE CONDUCT OF YOUR END-USERS, SUBSCRIBERS, AFFILIATES, AGENTS, AND OTHER RELATED PARTIES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
12.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF SWURVEYS, ITS AFFILIATES AND ITS SPONSORS, PARTNERS, SUCCESSORS, ASSIGNEES, LICENSORS, OTHER CO-BRANDERS AND THE RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES OF EACH ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE GREATER OF: (A) THE AMOUNTS PAID BY YOU TO SWURVEYS FOR USE OF THE SERVICES AT ISSUE DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; OR (B) US$250.00. THIS CAP ON DAMAGES IS INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. YOU ACKNOWLEDGE AND AGREE THAT THE AFOREMENTIONED IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR SERVICES.
12.3 YOU ACKNOWLEDGE AND AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF, RELATED TO OR CONNECTED WITH THE USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BANNED.
13.1 YOU AGREE TO DEFEND, INDEMNIFY AND HOLD SWURVEYS, ITS AFFILIATES AND ITS SPONSORS, PARTNERS, SUCCESSORS, ASSIGNEES, LICENSORS, CO-BRANDERS AND THE RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES OF EACH HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO: 1) YOUR (OR SOMEONE LAWFULLY OR UNLAWFULLY USING YOUR CREDENTIALS) ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT; 2) YOUR CONTENT, COMMUNICATIONS, USE OF END-USER INFORMATION, AND/OR USE BY YOU OR ANY THIRD-PARTY OF THE SERVICES, INCLUDING VIOLATIONS OF OR NON-COMPLIANCE WITH SPAM AND PRIVACY LAWS, REGULATIONS, AND PRACTICES; 3) YOUR PROVISION OF INACCURATE OR INCOMPLETE INFORMATION TO END-USERS; OR 4) ANY CLAIMS ARISING FROM END-USERS FOR THE RECEIPT, USE, CREATION, OR DISTRIBUTION OF SURVEYS OR CONTENT, EXCEPT TO THE EXTENT THE FOREGOING DIRECTLY RESULT FROM SWURVEYS’ OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
13.2 YOU AGREE TO COOPERATE AS REQUIRED BY SWURVEYS IN THE DEFENSE OF ANY CLAIMS AND LOSSES. SWURVEYS RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU; SWURVEYS EXERCISING THIS RIGHT DOES NOT CONSTITUTE A WAIVER OF ITS RIGHT TO INDEMNIFICATION. YOU AGREE TO COMPLY WITH SWURVEYS’ DEFENSE OF ANY CLAIM AND WILL NOT, IN ANY EVENT, SETTLE ANY CLAIM WITHOUT PRIOR WRITTEN CONSENT OF SWURVEYS.
13.3 YOU AGREE TO PROVIDE US WITH PROMPT WRITTEN NOTICE IN THE EVENT OF ANY CLAIMS OR ACTIONS BROUGHT AGAINST YOU THAT RELATE TO YOUR USE OF SWURVEYS’ SITE OR SERVICES.
13.4 YOU ACKNOWLEDGE AND AGREE THAT WE HAVE THE RIGHT TO SEEK DAMAGES AND OTHER LEGAL RECOURSE WHEN YOU USE THE SITE OR SERVICES FOR UNLAWFUL PURPOSES, IN AN UNLAWFUL MANNER, OR IN A MANNER INCONSISTENT WITH THE TERMS. IN THE EVENT THAT WE ARE REQUIRED TO RESPOND TO A THIRD-PARTY OR LAW ENFORCEMENT SUBPOENA OR COURT ORDER THAT IS RELATED TO YOUR USE OF OUR SITE OR SERVICES, WE MAY AT OUR SOLE DISCRETION REQUIRE YOU TO REIMBURSE US FOR OUR REASONABLE EXPENSES ASSOCIATED WITH COMPLYING WITH SUCH SUBPOENA OR ORDER.
- GENERAL PROVISIONS
14.1 This Agreement (together with the applicable Service Plans or any agreement incorporated herein by express reference) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written) about the subject matter of this Agreement.
14.2 No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either Party unless in writing and signed by the Party against which enforcement is sought. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.3 This Agreement shall be governed by the laws of the State of Washington, without reference to its laws regarding choice of law. The Parties agree that any appropriate state or federal district court located in King County, Washington shall have exclusive jurisdiction over any case, controversy, or dispute arising under or in connection with this Agreement and shall be a proper forum in which to adjudicate such dispute. The Parties consent to such jurisdiction for all purposes (both personal and subject matter).
14.4 Swurveys operates from the United States and does not intend to be subject to the laws or jurisdiction of any territory other than that of the United States. Swurveys does not represent or warrant that its Site or Services or any part thereof are appropriate or available for use in any particular jurisdiction. Those who choose to access or use the Site and Services do so on their own initiative and at their own risk and are responsible for complying with all local laws, rules, and regulations. We may limit the Service’s availability, in whole or in part, to any person, geographic area or jurisdiction We choose, at any time and in our sole discretion.
14.5 In any action or proceeding to enforce or interpret this Agreement, the prevailing Party will be entitled to recover from the other Party its reasonable costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
14.6 Any notice or communication hereunder shall be in writing and sent via email to email@example.com . All notices shall be in English, effective upon receipt.
14.7 This Agreement and the rights and obligations hereunder may not be assigned without obtaining the prior written permission of the non-assigning Party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties hereto.
14.8 The Parties shall be independent contractors under this Agreement, and nothing herein shall be interpreted to make either Party the employer, employee, agent or representative of the other Party or make both Parties a joint venture or partnership for any purpose.
- COPYRIGHT NOTICES
15.1. Swurveys respects the intellectual property rights of others, and We expect our Customers to do the same. We may, in appropriate circumstances, and at our discretion, terminate the accounts of Customers who infringe the intellectual property rights of others. If any person believes his/her/its work has been copied in a way that constitutes copyright infringement, please contact Swurveys at firstname.lastname@example.org . In the event that the DMCA applies to Swurveys, We will comply with all requirements of the DMCA in reviewing copyright infringement claims.
15.2 It is often difficult to determine if a copyright has been infringed. Swurveys may elect to not respond to notices at it sole discretion, and Swurveys may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the copyright law requirements. Swurveys electing to remove allegedly infringing material does not amount to a waiver of any defenses against the allegations.
IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITH RESPECT TO SWURVEYS’ SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE YOUR USE OF THE SERVICES AND CANCEL YOUR SWURVEYS ACCOUNT(S). ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.
The word and logo marks, Swurveys, are registered trademarks of Swurveys, Inc.