This Platform is operated by SWORD AND SCALE. Throughout the site, the terms “we,” “us,” “our,” “S&S,” and “Company” refer to SWORD AND SCALE. S&S offers this website, including all information, tools, services, and other content available on this site to you, the user, conditioned upon your acceptance of all the terms, conditions, policies, and notices stated in these Terms and Conditions (hereinafter, the “Terms”). These Terms apply to S&S’s websites, mobile applications, software platforms, or online offerings (collectively, the “Platform”), and will be available by link on all sites and offerings which it covers. You should review the applicable terms and conditions available.
Please read these Terms carefully before accessing or using our Platform. Your access to and use of the Platform or our services is conditioned upon your compliance with these Terms. These Terms apply to all visitors, users, and others who wish to access or use our Platform or services.
By accessing or using any part of the Platform or our services, you agree to be bound by these Terms. If you do not agree to any or all of the terms and conditions set forth in these Terms, you do not have permission to access the Platform or use our services.
Any new features or tools which are added to the current Platform or our services shall also be subject to these Terms. You can review the most current version of these Terms at any time on this page. We reserve the right to update, change, modify, or replace all or any part of these Terms by posting updates, modifications, and/or changes to our Platform. It is your responsibility to check this page periodically for any such changes or updates. Your continued use of or access to the Platform or our services following the posting of any changes, modifications, or updates constitutes your express acceptance thereof.
PLEASE READ THESE TERMS CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE PLATFORM. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT PERMITTED TO USE THE PLATFORM AND YOU MUST IMMEDIATELY CEASE DOWNLOADING, INSTALLING, OR USING THE PLATFORM.
BY DOWNLOADING, INSTALLING, ACCESSING, BROWSING, SIGNING UP, OR USING THIS PLATFORM, YOU ACCEPT AND AGREE TO THESE TERMS WHICH BIND YOU LEGALLY, AND YOU FURTHER:
- ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS;
- ACKNOWLEDGE THAT YOU ARE 18 YEARS OF AGE OR OLDER OR THAT YOU ARE 18 YEARS OF AGE OR OLDER AND YOU HAVE GIVEN US YOUR CONSENT TO ALLOW ANY OF YOUR MINOR DEPENDENTS TO USE THIS PLATFORM;
- UNDERSTAND THAT THIS PLATFORM PROVIDES MANY FORMS OF ENTERTAINMENT CONTENT, SOME OF WHICH YOU MAY CONSIDER INAPPROPRIATE FOR THOSE UNDER THE AGE OF 18. THIS CONTENT MAY CONTAIN LYRICS, SPEECH, VISUAL IMAGES, OR OTHER MEDIA THAT INCLUDES STRONG LANGUAGE, OR DEPICTIONS OF VIOLENCE, SEX, OR SUBSTANTIVE ABUSE (“EXPLICIT CONTENT”). PARENTAL DISCRETION IS ADVISED FOR ALL USERS OF THE PLATFORM UNDER THE AGE OF 18.
- ACKNOWLEDGE THAT WE WILL COLLECT AND USE YOUR INFORMATION TO PROVIDE THE PRODUCTS AND SERVICES YOU REQUEST THROUGH THE PLATFORM;
- WARRANT THAT ALL INFORMATION PROVIDED UPON REGISTRATION AS PART OF YOUR ACCOUNT IS TRUE, COMPLETE, AND ACCURATE, AND THAT YOU WILL PROMPTLY INFORM US OF ANY CHANGES TO SUCH INFORMATION BY UPDATING THE INFORMATION ON YOUR ACCOUNT;
- ACKNOWLEDGE AND AGREE THAT THE PLATFORM ACCESSES AND USES YOUR LOCATION INFORMATION BASED ON THE LOCATION OF YOUR DEVICE AT THE TIME OF CONNECTION.
If at any time after reviewing or using the Platform you wish to terminate such use or these Terms, you must uninstall, remove, and/or cease the use of the Platform from your Device completely and delete any copies thereof in your possession. “Device” means any Android or iOS compatible basic phone, smartphone, smart watch, tablet, or computer.
SECTION 1 – OVERVIEW
Collection of Location and Other Information. The Platform accesses and uses your Device Location information for our analysis of geographic dispersion of our services based on the area where your Device is located. In addition, this Platform collects and uses your name, address, email address, phone number, IP Address, cookie data, Device Information (such as OS, browser user agent string). It is your responsibility to keep your Device and access to the Platform secure. If you access the Platform from locations outside the United States, you do so on your own initiative and are responsible for the consequences and for compliance with all applicable laws.
Location Alerts. You agree to receive pre-programmed notifications (“Location Alerts”) on your Device if you have turned on locational services on your mobile telephone or other handheld devices (as the case may be).
Term and Termination. These Terms and the license granted hereunder shall be effective from the time you download, install, copy, or otherwise use the Platform until terminated. We may, in our sole and absolute discretion, at any time and for any or no reason, suspend or terminate the license and the rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any provision of these Terms, then the license and any rights afforded to you hereunder shall immediately terminate automatically, without the necessity of notice or other action by us. Upon the termination of the license granted to you hereunder, you shall cease all use of the Platform and uninstall and delete the Platform from your Device. We may, without notice to you, disable the Platform at any time. We will not be liable to you or any third party for compensation, indemnity, or damages of any sort as a result of suspending or terminating the license hereunder in accordance with these Terms, and such suspension or termination will be without prejudice to any other right or remedy we may have now or in the future. These obligations shall survive the termination of the license and these Terms.
Permission to use Device. If you are not the bill payer for the mobile telephone or handheld device being used to access the Platform, you will be assumed to have received permission from the bill payer for using the Platform.
Scope. We are offering the Platform to use for your own personal use only, and you should be aware that you cannot send it to anyone else, and you are not allowed to copy or modify our trademarks or the Platform or any part thereof in any way. You are not allowed to attempt to extract the source code of the Platform, and you should not try to translate the Platform into other languages or make derivative versions. The Platform and all the trademarks, copyright, database rights, and other intellectual property rights related thereto belong solely to S&S.
Revisions to Terms. We may change or revise these Terms from time to time in our sole discretion, with or without notice to you. You are bound by any such changes and revisions and should therefore periodically visit our Platform to review our then-current Terms. Your continued access and use of the Platform will be governed by our most current Terms and constitute your acceptance thereof and your agreement to be bound accordingly.
Updates. From time to time, we may provide updates to the Platform. You may not be able to use the Platform until you have installed the latest version.
Electronic Notices. You understand and agree that we transact with the Platform users electronically and, therefore, may provide you with required notices and terms electronically, such as by posting a notice in the Platform, and/or sending you an email.
Software and Downloads Available Through This Platform. Any software that is made available to access, use, view and/or download in connection with a Website or Internet Service ("Software"), including applications, podcasts, audio streaming, or video streaming, is owned or controlled by S&S and/or licensors, affiliates and suppliers and is protected by copyright laws and international treaty provisions. Your use of the Software is limited to private, non-commercial use and is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software. S&S accepts no responsibility or liability in connection with any Software owned or controlled by third parties.
SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time. You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Platform or our services, use of our services, or access to our services or any contact on the Platform through which the services are provided, without our prior written permission. The headings used in these Terms are included for convenience only and shall not limit or otherwise affect these Terms.
SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We may, but have no obligation to, update our product and service offerings on the Platform, and may experience delays in updating information on the Platform or in our advertising on other platforms. You agree that it is your responsibility to monitor changes to our Platform. We are not responsible if information made available on this Platform is not accurate, complete, or current. The material on this Platform is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete, or more timely sources of information. Any reliance on the material on this Platform is at your own risk. This Platform may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. The information found on this Platform may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Platform, and we cannot guarantee the accuracy or completeness of any information found on the Platform. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products and services are subject to change at any time without notice in our sole discretion. We reserve the right to modify or discontinue any products, services, or the Platform (or any part or content thereof) without prior notice at any time. We shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of any of our products, services, or the Platform.
SECTION 5 - LICENSE GRANT AND USE RESTRICTIONS
Restrictions on Use. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, or create derivative works based on the whole or any part of the Platform, for any purpose whatsoever; (b) modify, adapt, improve, or create any derivative work from the Platform or any part thereof or permit the Platform or any part of the Platform to be combined with or become incorporated in any other programs; (c) violate any applicable laws, rules or regulations in connection with your access or use of the Platform; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of S&S or its affiliates, partners, or suppliers; (e) use the Platform in a manner that derives revenue directly from the Platform, or use the Platform for any other purpose for which it is not designed or intended; (f) distribute the Platform to multiple Devices; (g) make the Platform available over a network or other environment permitting access or use by multiple Devices or users at the same time; (h) use the Platform for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by S&S; (i) use the Platform to send automated queries to any website or to send any unsolicited commercial e-mail; (j) use any proprietary information, interfaces or other intellectual property of S&S, or its affiliates, partners, or suppliers in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Platform; (k) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Platform or your Device; (l) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Platform; (m) copy, reproduce, reuse, upload, post, transmit, or distribute any content presented in or provided by the Platform, including, without limitation, for public or commercial purposes, including any text, images, audio, and video; (n) rent, lease, sub-license, loan, distribute, time-share, or translate the Platform in any way; (o) sell, resell, or exploit the Platform in whole or in part (including object and source code), in any form to any person or entity; or (p) use the Platform in a way that could damage, disable, overburden, impair, or compromise our systems or security or interfere with other users, or restrict or inhibit any other user from using the Platform.
You agree to abide by the rules and policies which are established from time to time by us in these Terms or any amendments, modifications, revisions, or updates thereto. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Platform and obtaining available patches to address security, interoperability, or performance issues. Your continued use of the Platform indicates your agreement to any revised license rights. Accordingly, we urge you to frequently review the license and any amendments thereto, and, if you do not agree to the terms of such rules and policies or any revisions thereto, you must cease using the Platform immediately.
SECTION 6 – S&S MEMBERSHIPS
Subscription Services. This Platform may offer certain Subscription Services such as newsletters. By registering for a Subscription Service, you will be subject to any charges and rules set forth in the description of that service.
S&S +PLUS Membership and Charges. S&S provides several membership tiers from which you can choose. Details for each tier can be reviewed at www.swordandscale.com/subscribe, which also includes the payment terms. In the event that you pay for a +PLUS membership by credit card, you authorize us to charge your credit card account by registering for the service and providing us with your credit card information. You warrant to us that the credit card information that you provide us is correct and is your account. We may permanently suspend your account in the event of an unlawful credit card chargeback or payment dispute. +PLUS memberships are non-transferable and sharing an account is prohibited. If we suspect users abusing their accounts, we reserve the right to permanently suspend use of such account. You understand and acknowledge that subscription to our +Plus membership is not directly tied to any of our production schedule. Such subscription includes access to existing and new content as it gets released. S&S reserves the right to suspend new releases for seasonal breaks or for other unforeseen circumstances without prior notice to its users and without right of refund.
Trials. Your S&S membership may start with a free trial. The duration of the free trial period will be specified during your sign-up and is intended to allow new members and certain former members to try our services. Free trial eligibility is determined by S&S at its sole discretion and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put your account on hold in the event that we determine that you are not eligible. Members of households with an existing or recent S&S membership are not eligible. We may use information such as device ID, method of payment or an account email address used with an existing or recent S&S membership to determine eligibility. For combinations with other offers, restrictions may apply. We will automatically charge the membership fee for the next billing cycle to your payment method at the end of the free trial period unless you cancel your membership prior to the end of the free trial period. S&S reserves the right, in its absolute discretion, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
Perks. S&S may occasionally throughout the year mail out physical perks to its +PLUS members, such as t-shirts, buttons, stickers, etc. S&S will not be responsible for any lost, stolen, or damaged perks mailed. More information regarding qualifications for such perks will be announced prior to such giveaway.
Lifetime Membership. Users may also subscribe to the “Lifetime Membership” program, which includes access to all digital content of S&S. You understand that by subscribing to such membership, S&S is not giving any guarantees related to the life and length of S&S.
In-App Purchase. From time to time, S&S may offer products and services for purchase (“in-app purchases”) through iTunes, Google Play or other application platforms authorized by S&S (each, an “App Store”). If you choose to make an in-app purchase, you will be prompted to enter details for your account with your App Store (your "App Store Account”), and your App Store Account will be charged for the in-app purchase in accordance with the terms disclosed to you at the time of purchase as well as the general terms for in-app purchases that apply to your App Store Account. Some App Stores may charge you a sales tax, depending on where you live. If you purchase an auto-recurring periodic subscription through an in-app purchase, your App Store Account will be billed continuously for the subscription until you cancel. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your App Store account and follow instructions to cancel your subscription, even if you have otherwise deleted your account with us or if you have deleted the S&S application from your Device. Deleting your account on S&S or deleting the S&S application from your Device does not cancel your subscription; S&S will retain all funds charged to your App Store Account until you cancel your subscription through your App Store Account.
Member Account and Password. You are responsible for any membership name and password that is associated with your account during registration. If the +PLUS service does not recognize your device from a previous sign-in, you will be asked for information that will help us to identify your registration. It is your responsibility to maintain the confidentiality of your password, if one is established. You are entirely responsible for any and all activities that occur under your account and agree to notify us immediately of any unauthorized use of your account.
Refunds. Generally, all charges for purchases and fees are nonrefundable, and there are no refunds or credits for partially used periods. We may make an exception if the laws applicable in your jurisdiction provide for refunds. If you subscribed using your Apple ID, refunds are handled by Apple, not S&S. To request a refund, go to iTunes, click on your Apple ID, select “Purchase history,” find the transaction and hit “Report Problem”. You can also submit a request at https://getsupport.apple.com. If you subscribed using your Google Play Store account, or our website, please contact us at www.swordandscale.com/contact-us with your order number for the Google Play Store (you can find the order number in the order confirmation email or by logging in to Google Wallet).
SECTION 7 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
You agree to provide current, complete and accurate purchase and account information for all purchases made. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account. You are responsible for maintaining the confidentiality of your account and password, including, but not limited to, the restriction of access to your Device or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Platform or a third-party service provider. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account or billing information. You may not use the billing information or identity of another person or entity without proper prior authorization. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion without notice.
SECTION 8 - INTELLECTUAL PROPERTY RIGHTS
Rights to App. You acknowledge and agree that the source and object code of the Platform (including whether or not present on your Device; and including, without limitation, any copy that you download, install, or use on your Device) and the format, directories, queries, algorithms, structure and organization of the Platform are the intellectual property and proprietary and confidential information of us, our affiliates, licensors, or suppliers. The Platform is licensed, not sold, to you. Title to the Platform shall remain at all times with us. We and our partners, collaborators, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Platform (or any copy thereof) at any time without notice and will have no liability to you or any third party for doing so. Except as expressly stated in these Terms, you are not granted any intellectual property rights in or to the Platform, whether by implication, estoppel or other legal theory, and all rights in and to the Platform not expressly granted to you under these Terms are hereby reserved and retained by us. These obligations survive the termination of these Terms and the license granted hereunder.
S&S Marks. Trademarks (including, but not limited to, the S&S logo) that are used or displayed in the Platform are owned by us or our affiliates, licensors, or suppliers. Our trademarks may not be copied or used, in whole, partial or modified form, without the prior written permission of us or, if applicable, our licensors. In addition, S&S custom graphics, logos, button icons, scripts, and page headers are covered by trademark, trade dress, copyright or other proprietary right law, and may not be copied, imitated, or used, in whole, partial or modified form, without our prior written permission. You may not use any meta tags or any other "hidden text" utilizing a S&S name, trademark, or product name without our express written consent. These obligations survive the termination of these Terms and the license granted hereunder.
Open Source Software. The Platform may utilize or include third party software that is subject to open source license terms ("Open Source Software"). You acknowledge and agree that your right to use such Open Source Software as part of the Platform is subject to and governed by the terms and conditions of any applicable open source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (collectively, the "Open Source License Terms"). In the event of a conflict between these Terms and the Open Source License Terms, the Open Source License Terms shall control.
SECTION 9 - OPTIONAL TOOLS
We may provide you with access to third-party tools which we neither monitor nor have any control or input over. You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of such optional third-party tools. Any use by you of optional tools offered through the Platform is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which such tools are provided by the relevant third-party provider(s). We may also, from time to time, offer new services and/or features through the Platform (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.
SECTION 10 - THIRD-PARTY LINKS
Certain content, advertisements, recommendations, information, products, and services available via our Platform may include materials from or links to third party websites or services, which are not controlled or owned by us. Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating their content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials, websites, or platforms, or for any other materials, products, or services of third parties. We have no control over and assume no responsibility for the content, privacy policies, or practices of any third-party website, platforms, or services. We do not warrant the offerings of any third-party providers or their platforms.
You acknowledge and agree that we shall not be liable, whether directly or indirectly, for any harm, loss, or damages caused or alleged to be caused by or in connection with your use or reliance on such content, goods, resources, transactions, or services available on or through any third-party websites/platforms. We strongly advise you to review carefully any third-party's policies, terms, conditions, and practices before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the third-party.
SECTION 11 - USER COMMENTS, FEEDBACK, AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example, contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation to: (1) maintain any comments in confidence; (2) pay compensation for any comments; or (3) respond to any comments. We may, but have no obligation to, monitor, edit, or remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violating any party’s intellectual property rights or these Terms. You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Platform or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 12 - PERSONAL INFORMATION
SECTION 13 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our Platform, products, or services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Platform or on any related platform is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information on the Platform or on any related platform, including, without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Platform or on any related platform, should be taken to indicate that all information on the Platform or on any related platform has been modified or updated.
SECTION 14 - PROHIBITED USES
In addition to other prohibitions as set forth in these Terms, you are prohibited from using the Platform or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Platform or of any related website, other websites, related platforms, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Platform or any related platform/website, other websites/platforms, or the Internet. We reserve the right to terminate your use of the Platform or any related website/platform for committing any of the prohibited uses.
SECTION 15 - APPLE APP STORE TERMS
These Terms apply to your use of the Platform, including the iPhone, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
- Both you and S&S acknowledge that these Terms are between you and S&S only, and not with Apple, and that Apple is not responsible for the Application or any content posted to or made available via the Application;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the S&S Platform for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they apply to the Platform;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that S&S, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, S&S, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and S&S acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and S&S acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that 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 the third party beneficiary hereof.
SECTION 16 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
YOUR USE OF THE PLATFORM, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN THE PLATFORM, ANY PLATFORM-RELATED SERVICE OR SOFTWARE THAT IS PROVIDED TO YOU, IS AT YOUR SOLE RISK. THE PLATFORM, INCLUDING ANY CONTENT, SOFTWARE OR INFORMATION CONTAINED WITHIN THE PLATFORM AND ANY PLATFORM-RELATED SERVICE, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE AND OUR SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES, EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU.
NEITHER WE NOR OUR SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, NOR OUR OR THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES MAKE ANY REPRESENTATION OR WARRANTY THAT: (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (ii) MATERIALS, SOFTWARE OR CONTENT AVAILABLE FROM THE PLATFORM ARE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; (iii) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE (INCLUDING FREE FROM UNAUTHORIZED ACCESS), PROVIDE CONTINUOUS STORAGE OR ACCESS, OR ERROR-FREE; (iv) THE RESULTS OR INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE, COMPLETE, CURRENT, OR RELIABLE; (v) THE QUALITY OF ANY PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS; AND (vi) ANY ERRORS IN OUR PLATFORM OR SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR BUSINESS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR THE USE OF THE PLATFORM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY. ADVICE OR INFORMATION RECEIVED BY MEANS OF THE PLATFORM SHOULD NOT BE RELIED UPON FOR SIGNIFICANT PERSONAL, BUSINESS, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR PARTICULAR SITUATION.
SECTION 17 – LIMITATIONS OF LIABILITY; INDEMNIFICATION
Limitation of Liabilities. IN NO EVENT SHALL WE OR OUR EMPLOYEES, OFFICERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (i) THE USE OR INABILITY TO USE THE PLATFORM OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE PLATFORM; (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE PLATFORM OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE PLATFORM; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; (vi) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; OR (vii) ANY OTHER MATTER RELATING TO THE PLATFORM, EVEN IF WE OR OUR AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR PLATFORM-RELATED SERVICES IS TO STOP USING THE PLATFORM AND/OR THOSE SERVICES. WE ARE NOT RESPONSIBLE OR LIABLE FOR YOUR ILLEGAL, UNAUTHORIZED, OR IMPROPER USE OF INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED USING THE PLATFORM.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF US UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
Indemnification. You agree to indemnify, defend, and hold us harmless, as well as our officers, directors, agents, employees, underlying content and/or service providers, licensors, and suppliers, and each of their respective subsidiaries and affiliates from and against any claim, proceeding, loss, expense, damage and cost, including reasonable attorneys' fees, made by any third party due to or arising out of any material or any other content or information that you submit, post or upload to or transmit through the Platform, your use of the Platform, your connection to the Platform, your violation of these Terms, or your violation of any law or the rights of any third party. These obligations will survive any termination of your relationship with us or your use of the Platform. We reserve the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
SECTION 18 – SEVERABILITY
In the event that any provision of these Terms is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, and any such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 19 – TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms for all purposes. We may terminate or suspend your account, your access to the site, our services, or these Terms at any time without prior notice or liability in our sole discretion for any reason whatsoever, including, but not limited to, your violation of any provision of these Terms. You may terminate these Terms at any time by discontinuing our services and ceasing to use our site. Notwithstanding any termination of these Terms, you will remain liable for all amounts due and outstanding up to and including the date of termination. All provisions of these Terms which by their nature are intended to survive the termination of these Terms shall survive the termination of these Terms, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
SECTION 20 – NO WAIVER; ENTIRE AGREEMENT; AMBIGUITIES
The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms and any policies or operating rules posted by us on this Platform or in respect to our services or products constitutes the entire agreement and understanding between you and us and govern your use of the Platform, our products, and our services, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these Terms). Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
SECTION 21- ARBITRATION AGREEMENT
Arbitration. You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Platform (collectively, "Disputes") will be settled by final and binding arbitration between you and S&S. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). Notwithstanding anything else contained herein, each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and S&S are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and S&S otherwise agree in writing, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Arbitration Agreement" section will be deemed void. Except as provided in the preceding sentence, this "Arbitration Agreement" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Commercial Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
Arbitration Process. If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought.
Arbitration Location and Procedure. The arbitration shall take place in Miami-Dade County, Florida. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and S&S submit to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law.
Fees. The party initiating the arbitration must bear the costs and fees related thereto.
Severability and Survival. This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Agreement. In the event any portion of this Arbitration Agreement is deemed unenforceable, the remainder of this Arbitration Agreement will be enforceable. Therefore, terms of this Arbitration Agreement shall be severed, to the smallest extent possible, if required to uphold the enforceability of this Arbitration Agreement. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims.
SECTION 21 - GOVERNING LAW; JURISDICTION; ATTORNEY’S FEES; JURY TRIAL
These Terms are governed by and construed in accordance with the laws of the State of Florida, U.S.A., without giving effect to any conflict of law principles. For all claims not subject to the Arbitration Agreement in Section 20, you agree that they will be brought exclusively in the federal or state courts of competent jurisdiction sitting in Miami-Dade County, Florida, and you expressly agree that such courts shall have jurisdiction over you. The prevailing party in any dispute arising hereunder or from your use of the Platform shall be entitled to an award of its reasonable attorney’s fees and legal costs against the non-prevailing party.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU AND S&S AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
YOU HEREBY WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE PLATFORM.
SECTION 22 - CHANGES TO TERMS OF SERVICE
You can review the most current version of these Terms at any time on this page. We reserve the right, at our sole discretion, to update, change, modify, or replace all or any part of these Terms by posting updates and changes to our Platform. It is your responsibility to check our Platform periodically for changes. Your continued use of or access to our Platform or our services following the posting of any changes to these Terms constitutes your express acceptance of those changes.
SECTION 23 - CONTACT INFORMATION
Questions about these Terms should be sent to us at firstname.lastname@example.org.