Swyvel End User Agreement
By using the services (the "Service") made available to you (either an individual or a single legal entity, "you") by Swyvel Inc.("Swyvel","we"or "us") from time to time through the swyvel.com websiteor by clicking a button indicating your acceptance of this agreement (the "Agreement"), you agree to be bound by this Agreement.If the person identified as the account holder is a legal entity and not an individual, the individual agreeing to this Agreement represents and warrants, and it is a condition of the rights granted under this Agreement, that you (the individual) have the authority to bind such legal entity and that this Agreement will be binding on and enforceable against such legal entity.
Subject to the terms and conditions of this Agreement, we will make the Service available for your use through our website. Modifications and enhancements of the Service willbe considered a part of the Service and will be subject to this Agreement. You are solely responsible for all files, documents, diagrams, graphics, materials, data or information that are uploaded, stored, created or processed through or using the Service ("Content") by you, using your Credentials or by others to whom you have given access to your account or your Content. You are also solely responsible for managing read, access, write and use rights on your Content. We do not actively monitor or review Content but reserve the right to do so. You understand and agree that weare not responsible for any Content hosted or otherwise accessible through the Service. In order to use the Service, you will be required to provide registration and payment information to us to create your account. You represent, warrant and covenant that all such information is true, accurate, complete and current and further agree to promptly update all such information from time to time using the Service to ensure that such information is at all times true, accurate, complete and current.You may create one or more user identifications and passwords in order to access or use the Service ("Credentials"). Each set of Credentials must be assigned to a specific individual. You must ensure that Credentials are disclosed only to and used only by such individual. Once anindividual is identified and allocated Credentials, the rights of such individual to use the Service may not be reassigned, transferred, lent, borrowed or shared, whether temporarily or permanently, with any other person in any manner whatsoever.
Changes to the Agreement and the Service
We reserve the right to change this Agreementand the fees we charge for the Service by posting revisions to our websitefrom time to time without notice. We also reserve the right to change, augment, improve, update, enhance, modify, discontinue or remove features from the Service from time to time without notice. You understand and agree that it is your responsibility to check our website from time to time for any such changes. Except for emergency changes to the Service (including, without limitation, to address security incidents or to address situations which may disrupt the provision of the Service), such changes will become effective the earlier of: (a) 30 days after they are posted to our website; or (b) upon presentation and your acceptance of such changes. If you do not agree with any such changes, your sole and exclusive remedy is to terminate this Agreement and your subscription to the Service by delivering written notice to us within such time or by not accepting such changes when they are presented.You agree that your continued use of the Service thereafter is deemed to be your agreement and acceptance of any such changes.
You agree not to: (a) reproduce, duplicate, copy, sell, resell or exploit the Service, use of the Service, or access to the Service; (b) modify, port, adapt, translate, reverse engineer, unbundle, repackage, decompile, disassemble or convert into human readable form any part of the Service, or create derivative works based on, or any competitive or emulating software or solution using, the Service; (c) use the Service in a manner or for a purpose that infringes upon the lawful rights of others or contravenes any applicable laws; (d) upload, post, host, transmit or create any: (i) Content that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any third party intellectual property or other rights; (ii) any unsolicited commercial message; (iii) any virus, trojan horse, backdoor, bot, script or similar element; (e) use the Service in any manner that could damage, disable, overburden or impair the Service, or otherwise in an abusive or excessive manner, as determined by us in our sole discretion; (f) interfere with the security of, or otherwise abuse, the Service or any system resources, accounts, servers or networks connected to or accessible through the Service; (g) disrupt or interfere with any other person's use or enjoyment of the Service; (h) use another person's Credentials or services, systems or information or create or use a false identity, impersonate any person or otherwise misrepresent your identity; or (i) attempt, or cause, permit or encourage any other person, to do any of the foregoing.
Representations and Warranties
You represent, warrant and covenant that: (a) you are and will be free to enter into and to fully perform your obligations under this Agreement and that no agreement or understanding with any other person exists or will exist which would interfere with such obligations; (b) this Agreement constitutes a legal, valid and binding obligation upon you, enforceable against you in accordance with its terms and conditions; (c) there is no outstanding litigation, arbitration or other dispute to which you are a party which if decided unfavourably to you could have a material adverse effect on your ability to perform your obligations under this Agreement; and (d) you have obtained all permits, consents and approvals required for your use of the Service.
The rights granted to you under this Agreement are subject to and conditional upon your payment of applicable fees ("Fees") for the Service. You agree to provide a valid credit card number to which Fees and any other amounts owed by you to us in respect of your account will be charged. You authorize us and the card issuer to charge such Fees and amounts to your credit card until this Agreement is terminated in accordance with its terms. You consent to us sending information you have submitted to us to create your account to our and your financial institution to implement such authorization. You represent and warrant that all persons required to authorize charges to the credit card number you have provided have authorized such charges. You understand and agree that amounts charged may vary depending on your level of Service or changes to same, your usage or credit or debit adjustments. You also agree that we may charge you a fee for rejected or declined payments. You waive your right to receive pre-notification of the amount of the charge to your credit card and agree that you do not require advance notice of the amount before charged to your credit card. Fees must be paid monthly in advance on a pre-determined billing date and are not refundable.You understand and agree that no refunds or credits will be issued for partial months of use or service interruptions. Any Fee changes for upgrades or downgrades in the level of your Service will be reflected in the charges in the following month. Downgrades may result in the loss or reduction of features, storage or usage capacity, which may result in the loss of Content. You are solely responsible for properly preparing for any downgrade and we have no obligation or liability for same.All overdue amounts bear interest at the rate of 12% per year, calculated daily and payable monthly, until such Fees are fully paid. Fees do not include applicable taxes and you are responsible for all applicable goods and service, sales, harmonized sales, value-added, use and other taxes which are or may be levied in connection with the Service, except for taxes on our income. Unless otherwise indicated in this Agreement, all amounts in this Agreement are stated and are payable in the currency selected at the time of payment.You may not create, use or maintain more than one free account.
We reserve the right to suspend or terminate this Agreement and your rights to use the Service: (a) without notice if you breach or otherwise fail to comply with any provision of this Agreement, including without limitation your failure to pay any amountswhen due or if amounts charged to your credit card are declined or rejected for any reason; or (b) effective upon the end of your current paid up monthfor any reason on at least seven days' notice to youor by posting a message to you through the Service at least seven days prior to termination. We reserve the right to refuse to provide the Service to anyone for any reason at any time.You may terminate this Agreement at any time and for any reason by accessing the account termination function through the Service.If you terminate prior to the billing cut-off date for the current month, your termination will be effective at the end of that month and you will not be charged again. If you terminate after such time, Fees for the following month will be charged to your credit card and your termination will be effective at the end of the following month. You are solely responsible for the proper termination of your account in accordance with the foregoing, and may not terminate by sending an e-mail, written correspondence or by telephone.Upon termination of this Agreement any and all rights granted to you and any others to whom Credentials or access rights have been extended under your account, including all rights to access and use the Service and all Content stored through the Service, shall immediately cease. You are solely responsible for backing up your Content and/or making a copy of Content prior to any suspension or termination. Following termination, your Content will be deleted in the normal course of our operations, provided however that we reserve the right to preserve Content if required to resolve a dispute or assert or defend any claim.
The Service and the underlying software and technology used to provide the Serviceare protected by copyright and other intellectual property rights and are not sold. By paying to acquire the right to use the Service you do not become the owner of the Service, any software or technology used to provide the Service, or any portion thereof. Except for the rights expressly granted to you under this Agreement, all right, title and interest (including all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Service, including all software and technology used to operate the Service, are and shall remain exclusively owned by us and our licensors. All trade names, company names, trademarks, service marks and other product and service names and logos related to the Service are the proprietary marks of Swyvel or its licensors, and are protected by law and may not be copied, imitated or used, in whole or in part, without the consent of their respective owners. This Agreement does not grant you any rights in respect of any such marks. You understand and agree that any feedback, input, suggestions, recommendations, improvements, changes, specifications, test results, or other data or information that you provide or make available to us arising from or related to your useof the Service shall become our exclusive property and may be used by us to modify, enhance, maintain and improve the Service without any obligation or payment to you whatsoever. The foregoing does not apply to any of your Content, provided however that you grant us the right to use Content as reasonably required to provide you the Service, to discharge our obligations or to exercise our rights under this Agreement. We reserve the right (but have no obligation) to review your Content and to refuse or remove any Contentif we determine, in our sole discretion, that such Content is in breach of this Agreement or may expose us, our licensors or our service providers to liability.
Third Party Products
You acknowledge and agree that you will require certain third party equipment, products, software and services ("Third Party Products") in order to use the Service, and that failure to use or procure Third Party Products that meet the minimum requirements for the Service may result in the inability to use the Service and/or processing failures or errors. Third Party Products may include, without limitation, computers, networking equipment, operating system software and internet connectivity. We may also include, incorporate or make available Third Party Products through the Services. You acknowledge and agree that: (a) Third Party Products may be governed by separate licenses, agreements or terms and conditions and we have no obligation or liability to you in respect thereof, even if provided or made available by us; and (b) you are solely responsible for procuring any Third Party Products not provided or made available by us at your cost and expense, and are solely responsible for compliance with any applicable licenses, agreements or terms and conditions governing same.
You acknowledge that any unauthorized disclosure to third parties who are not users of the Servicemay cause immediate and irreparable harm to us. Consequently, you agree to take all reasonable steps to maintain the confidentiality of the Service and shall not, without our prior written consent, disclose, or make them available in any form to any other person.
You agree that we will be entitled to treat all communications, transmissions and other activity in the course of using the Service under Credentials created by you as having been authorized by you and agree to be responsible for all actions and activities undertaken using your Credentials. You understand and acknowledge that it is your responsibility to ensure that Credentials are kept safe and secure, and are not shared or disclosed by the individuals to which they are issued. If you believe the security of any of your Credentials has been compromised, or you suspect unauthorized use, you must notify us immediately. You will be responsible for all activity until you notify us and we have had a reasonable opportunity to suspend such Credentials. If we suspect that there has been fraudulent or unauthorized use of your Credentials, we reserve the right to suspend or terminate such Credentials and/or access to the Service while such activity is being investigated. In such event, we will also use reasonable efforts to contact you.You acknowledge and agree that your Content may be stored or transmitted through third party facilities, third party services or common carriers, including without limitation the internet, in the course of using the Service. It may be possible for third parties to monitor or access such data.
You acknowledge and agree that your use of the Service is at your sole risk. We provide the Service on an "as-is" and "as-available" basis and, to the maximum extent permitted by applicable law, we disclaim all representations, warranties and conditions regarding the Service or your use of the Service, including without limitation any warranties or conditions of merchantability, merchantable quality, durability, fitness for a particular purpose, non-infringement, title, quiet enjoyment or quiet possession and those arising by statute or in law, or from a course of dealing or usage of trade. We cannot and do not warrant that the Service will meet your requirements or expectations, will operate without interruptions, that it will be error-free, virus-free, that the results obtained from its use will be timely, accurate, reliable or current or that any or all deficiencies can be found or corrected. We accept no responsibility for, and do not warrant the accuracy, currency or reliability of any output or data prepared by or with the assistance of the Service.We do not warrant that the Service will not infringe the proprietary rights (including patent, copyright, trade mark, or trade secret rights) of any third party. We are not obligated to review the completeness, accuracy or any other aspect of any information provided or processed through or using the Service, including your Content. We shall not be liable, and assumes no responsibility, for any loss or damages arising from or in connection with: (a) any access, inability to access, fault or failure of the Service resulting directly or indirectly from your or any third party hardware, software, service, service provider, network, information, user or computing resource, excluding our suppliers and service providers; (b) unauthorized access to or alteration, theft, loss, corruption or destruction of your Content (including but not limited to errors in or failures of the media or storage devices used to store your Content); or (c) any other act or omission of any third party other than our service providers. We cannot represent or warrant that your Content will be secure at all times.
Limitation of Liability
You agree that, to the maximum extent permitted by applicable law, our aggregate liability arising from or related to this Agreement or the Service in any manner will be limited to direct damages not to exceed the amount you have paid to use the Service for the calendar month immediately preceding the cause of action. To the maximum extent permitted by applicable law, in no event shall we be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever (including, without limitation, damages for loss of revenue, profits, or expected savings, business interruption, personal injury, loss of privacy, loss of data or information or other pecuniary or intangible loss) arising out of this agreement or the use of or inability to use the Service, even if we foresee or have been advised of the possibility of such damages.
The limitations and disclaimers in this Agreement shall apply irrespective of the nature of the cause of action, demand or claim, including but not limited to breach of contract, negligence, tort, or any other legal theory and shall survive a fundamental breach or breaches and/or failure of the essential purpose of this Agreement or of any remedy contained herein. Because some jurisdictions do not allow some or all of the exclusions or limitations of liability set forth in this agreement, such limitations and exclusions may not apply to you.
You will indemnify and hold us, our affiliates, subcontractors, licensors and agents and our and their directors, offices, employees and representatives harmless from and against all damages arising from or related to: (a) your breach of this Agreement; and (b) third party claims arising from or related to your acts or omissions.
You and we are independent contractors. Nothing in this Agreement is or shall be deemed to create a partnership or joint venture or a relationship of principal and agent, employer-employee, master-servant, or franchisor-franchisee between you and us and no provision contained herein is or will be deemed to create any relationship between the parties hereto other than the relationship of independent parties contracting for services.
Neither this Agreement nor any of your rights or obligations under this Agreement may be transferred or assigned by you, in whole or in part, whether voluntarily, by operation of law, or otherwise, without our prior written consent and any such attempted assignment or transfer shall be null and void. This Agreement will enure to the benefit of and be binding upon the respective successors and permitted assigns of you and us. This Agreement may be assigned by us in our sole discretion. You acknowledge and agree that we may subcontract our obligations under this Agreement and may use third parties to provide equipment, software and services used to operate and provide the Service.
You agree that we may identify you as a user of the Service on our website or in other marketing, advertising and promotional material.
You agree that all claims, disputes or disagreements of any nature whatsoever arising from or relating to this Agreement, the Services or us (a "Dispute") will, at our sole option, be settled by final and binding arbitration by a single arbitrator pursuant to the Arbitration Act, 1991 (Ontario). Judgement upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow. The arbitration will take place in the City of Toronto, Ontario, Canada and shall be conducted in English only. The arbitrator will: (a) not limit, expand or modify the terms of this Agreement nor award damages in excess of compensatory damages permitted under this Agreement, and you hereby waive any claim to such excess damages; (b) not have any ability to award any equitable remedies against us; (c) not have the right to award any damages in excess of damages that could lawfully be awarded by a court of competent jurisdiction and subject always to limitations and exclusions in this Agreement; and (d) issue a written decision containing findings and conclusions on all significant issues. Each party will each bear its own expenses and an equal share of all costs and fees of the arbitration. All participants, each of whom will be bound by an appropriate confidentiality agreement, will hold the content and result of any arbitration in confidence. Notwithstanding the foregoing, you acknowledge and agree that irreparable injury may result to us if you breach any of the provisions in this Agreement and that damages may be an inadequate remedy in respect of such breach. You hereby agree in advance that, in the event of such breach, we shall be entitled, in addition to such other remedies, damages and relief as may be available at law or in equity, to the granting of interlocutory and final injunctive relief. Any legal proceeding brought by you against us must be brought within one year after the event which is the subject of the proceeding has occurred. You agree to waive any right you may have to commence or participate in any class action against us in respect of any Dispute and further agree to opt out of any class proceedings against us.
If the performance by us of any of our obligations is prevented, restricted, or interfered with, by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labour disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond our reasonable control, we will be excused from such performance to the extent of such prevention, restriction or interference.
Choice of Law
This Agreement will be deemed to have been made and performed exclusively in the Province of Ontario, Canada and will be governed by and construed under the laws of the Province of Ontario without giving effect to Ontario's conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario for any claim related to this Agreement or the Service that is not subject to arbitration arising from or in connection with this Agreement and agree not to bring any action, claim, suit or proceeding against us, our affiliates or agents (or any officer, director, or employee thereof) in any jurisdiction other than the Province of Ontario.
This Agreement constitutes the entire agreement between you and us with respect to the subject matter of this Agreement and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between you and us other than as expressly set forth in this Agreement. You represent and warrant that you have not been induced to enter into this Agreement by any other statement, representation or warranty not contained in this Agreement. The headings in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
Neither the expiration nor the earlier termination of this Agreement will release you from any obligation or liability that accrued prior to such expiration or termination. The provisions of this Agreement requiring performance or fulfilment after the expiration or earlier termination of this Agreement and any other provisions hereof, the nature and intent of which is to survive termination or expiration of this Agreement, will survive the expiration or earlier termination of this Agreement.
To the extent that any provision of this Agreement is declared by a court or other lawful authority of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and both parties will use their best efforts to substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provision, and the remainder of this Agreement shall continue in full force and effect with respect to all other provisions.
Amendments and Waivers
No modification, amendment, addition to or waiver of any rights, obligations or defaults by us shall be effective unless in writing and signed by one of our authorized signing officers. One or more waivers of any right, obligation or default shall be limited to the specific right, obligation or default waived and shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure of Swyvel in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.
Except as expressly set out in this Agreement, any demand, notice or other communication to be given to us shall be given in writing by mail to the following address: 210 Victoria St., Suite 4013, Toronto, ON, CanadaM5B 2R3or to such other address as we may advise you of from time to time, including through the Service. Any demand, notice or other communication to be given to you may be given by mail, fax or e-mail using the contact details we have on record or posted through the Service to your account.