These Terms of Service (“Terms”) govern your access and use of the website, products, and services provided by SwayPay, Inc., a Delaware corporation located at 1259 El Camino Real, Unit #1001, Menlo Park, CA 94025 (“SwayPay”, “we”, “us” or “our”). By using the SwayPay website, app or any other product or service provided by SwayPay (collectively the “Services”), you accept all the terms contained in this agreement. YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICES.
These Terms are governed by the laws the State of California without regard to its conflict of laws rules and govern the use of SwayPay’s Services by all users. We may amend these Terms at any time by posting a revised version on our website and in our application. The modified version of the Terms will be effective when posted and it is your responsibility to check for updates prior to accessing or using the Services. For your convenience, the date these Terms were last posted is set forth as the effective date below.
We may, although we will not be obligated to, provide you with an in-application notice (solely with respect to Services that use our application) before implementing revisions that constitute substantial changes to the Terms. Changes to these Terms will be effective immediately for you and all other users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by these Terms as modified.
SwayPay’s Services include, without limitation, a mobile application that allows users to shop online on any device and check out while earning discounts and rewards. SwayPay implements reasonable security measures to help protect user information during checkout. SwayPay is not a payment processor, and, thus, does not process payments. When you use SwayPay to check out at online stores, SwayPay merely provides the necessary payment information to merchants and their payment processors for your convenience.
SwayPay’s provides merchants, subject to the terms of a Master License Agreement, the ability to integrate with SwayPay’s software to allow users to shop and check out using SwayPay’s mobile application. Each merchant is solely and independently responsible for entering into one or more agreements with payment processors and/or payment gateways, complying with all terms associated with such payment processors and/or payment gateways, and properly integrating the Services with its software. Each merchant must enter into SwayPay’s then-current Master License Agreement to use and integrate with the Services and will be subject to all of the terms and conditions set forth therein.
Account Creation. In order to use certain features of the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Services. SwayPay may suspend or terminate your Account in accordance with these Terms.
Your Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify SwayPay of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. SwayPay cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
License. Subject to these Terms, SwayPay grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Services solely for your own personal, noncommercial use .
Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
You must be 13 years of age or older to use SwayPay. If you are over 13 years of age but under 18 years old, you need your parent or legal guardian’s permission to use SwayPay and accept SwayPay’s Terms.
The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Services to collect, upload, transmit, or display (i) that violates 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; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation (intentional or unintentional) of this agreement or any law, regulation, or obligations or restrictions imposed by any third party.
(b) You agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iii) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (iv) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (v) “Stalk” or otherwise harass or interfere with any other user’s use and enjoyment of the Services; or (vi) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file). (vii) impersonate any person or entity, including, but not limited to, a SwayPay representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (xiii) use another person's Account, misrepresent yourself or services offered through the Services, misrepresent your identity or qualifications, misrepresent a project or other information in a service request, or post Content in any inappropriate category or areas on the Services; (ix) encourage others to violate this Agreement; (xiv) refuse to follow SwayPay staff instruction or direction; (xv) disclose the Private Information of a user without the permission of that user; (xvi) transmit money to SwayPay or any Organizer or Creator or Host through financial accounts that are stolen, fraudulent or otherwise unauthorized; (xvii) Attempt to indirectly undertake any of the foregoing.
We reserve the right (but have no obligation) to review your use of the Services, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy, if your use is flagged as inappropriate, or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing your Account, requiring you to forfeit certain funds or paid fees, assessing monetary penalties or costs, decreasing your status or search rank, blocking access, terminating your Account in accordance with these Terms, and/or reporting you to law enforcement authorities.
If you provide SwayPay with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to SwayPay all rights in such Feedback and agree that SwayPay shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. SwayPay will treat any Feedback you provide to SwayPay as non-confidential and non-proprietary. You agree that you will not submit to SwayPay any information or ideas that you consider to be confidential or proprietary.
The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of SwayPay, and SwayPay is not responsible for any Third-Party Links & Ads. SwayPay provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
You hereby release and forever discharge the SwayPay (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Services users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SERVICES IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND SWAYPAY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to indemnify and hold SwayPay (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services to include but not limited to injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising from providing or receiving services, (b) your violation of these Terms, or (c) your violation of applicable laws or regulations. SwayPay reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of SwayPay. SwayPay will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SWAYPAY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF SWAYPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
UNDER NO CIRCUMSTANCES WILL SWAYPAY BE LIABLE FOR ANY ACTIONS OR OMISSIONS BY A MERCHANT OR SUCH MERCHANT’S VENDORS, INCLUDING ANY DATA BREACH, MISAPPROPRIATION OF YOUR INFORMATION, FAILURE TO PROVIDE ANY GOODS OR SERVICES, FALSE OR MISLEADING STATEMENTS, FAILURE TO ACCEPT YOUR PAYMENT, FAILURE TO PROCESS YOUR PAYMENT, OR ANY OTHER DAMAGE OR LOSS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. SwayPay will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Release, Disclaimers, Limitation of Liability, and Indemnification.
Please read this Arbitration Agreement carefully. It is part of your contract with SwayPay and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the SwayPay that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the SwayPay, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services, any other services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the SwayPay should be sent to: SwayPay, Inc., 1259 El Camino Real, Unit #1001, Menlo Park, CA 94025. After the Notice is received, you and the SwayPay may attempt to resolve the claim or dispute informally. If you and the SwayPay do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the SwayPay made to you prior to the initiation of arbitration, the SwayPay will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If you or the SwayPay pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the SwayPay, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the SwayPay.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the SwayPay in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE SWAYPAY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge
So that SwayPay may provide and continue to improve your experience with the app, the Services and associated services, you permit SwayPay to collect information that includes: transaction details, account details, and other personal information from third parties, including merchants, social media accounts you connect to SwayPay, and the issuers of your payment methods.
In order for SwayPay to deliver its Services to you, you acknowledge and explicitly consent to allow SwayPay to disclose to apps that you have set up SwayPay and you authorize the app to share your device, payment, location, and account information with the issuers of your card and/or other payment methods. You also allow SwayPay to share your personal information with merchants, payment processors and other third parties when necessary to process a transaction for you.
These Terms constitute the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to SwayPay is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without SwayPay’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. SwayPay may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
These Terms are important. We encourage you to read them carefully. If you have any questions or concerns regarding these Terms, please contact us.
Effective Date: December 26, 2017