Welcome, and thank you for your interest in our mobile application Swappy Car (the “App”) and www.swappycar.com (the "Website") owned and operated by Swappy Car, Inc. a Delaware C-Corporation, and hereafter collectively referred to in these Terms of Service as "Swappy Car", "us", "our" or "we".  Unless otherwise specified, all references to our services (the “Service” or "Services") include the content, services and products available through the App and the Website, as well as any software and technology that Swappy Car provides to you and allows you to access the Services. The term "user", "you" or "your" refers to the user of the Service, including visitors that do not register for an account with Swappy Car. The following Terms of Service are a legally binding contract between you and Swappy Car regarding your use of the Service.

 

PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT, INCLUDING THE DISPUTE RESOLUTION, ARBITRATION PROVISIONS AND CLASS ACTION WAIVER AND ACCEPT ALL OF THE TERMS. YOU MAY NOT USE OR ACCESS OUR PLATFORM IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

1. Our Service

   1. Swappy Car is a community-based technology platform that allows members of the community to locate available parking spaces by facilitating the connection of users leaving a parking space with users searching for a parking space. Users of the App can interact with each other in the following two ways: 1) A user who is leaving their street parking space can access the App and enter in where their car is located to let other people know they’re leaving their parking space; or 2) A user who is searching for a street parking space can access the App, and the App will display the available parking space on a map for the user to locate the space.

   2. Swappy Car reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in the Service and its components (including all software, technology and other intellectual property rights) will remain with and belong exclusively to Swappy Car.

   3. Our Service is free to use at this time. Swappy Car reserves the right to convert a free account to a paid account at any time. If we convert to a paid service we will notify you in advance. If a user does not consent within thirty (30) days of notice, their account will be terminated. If the account is terminated, you agree that Swappy Car shall have no liability to you.

   4. Any modifications and new features added to the Service are also subject to this Agreement.  

2. Acceptance of Our Terms

1. Please read the following Terms of Service (the "Terms" or the "Agreement") carefully before accessing or using any of the Services. Each time you access or use our Services, you, and if you are acting on behalf of a third party, such third party, agree to be bound by these Terms of Service and our Privacy Policy, whether or not you have registered for an account with us. If you do not agree to be bound by all of these Terms and our Privacy Policy, you may not access or use our Service.

2. Swappy Car does not endorse any users of our Services, and has no control over the user. Users should always exercise responsibility, due diligence and care when deciding whether to interact with any other user, both on and off the App.

3. YOU AGREE THAT THE USE OF OUR SERVICES IS AT YOUR SOLE RISK AND BY USING THE SERVICES, YOU UNDERSTAND AND AGREE THAT ANY LEGAL REMEDY OR RECOVERY THAT YOU SEEK TO OBTAIN FOR ACTIONS OF OTHER USERS WILL BE LIMITED TO A CLAIM AGAINST THOSE PARTICULAR USERS AND NOT SWAPPY CAR. YOU AGREE NOT TO ATTEMPT TO IMPOSE LIABILITY ON, OR SEEK ANY LEGAL REMEDY FROM SWAPPY CAR WITH RESPECT TO THE ACTIONS OF OTHER USERS. FURTHERMORE, YOU HEREBY AGREE THAT SWAPPY CAR SHALL HAVE NO LIABILITY FOR ANY DAMAGES (INCLUDING PROPERTY DAMAGES) OR INJURIES RESULTING FROM YOUR USE OF OUR SERVICES.

4. Swappy Car may change this Agreement at any time by posting an updated Terms of Service on this Website and in the App. If any amendment to these Terms is unacceptable to you, you shall cease using our Services. If you continue using our Services, you will be constructively deemed to have accepted the changes.

5. In addition, certain areas of the Service may be subject to additional terms and conditions that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional terms and conditions applicable to such areas. In the event that any of the additional terms and conditions governing such area conflict with these Terms of Service, the additional terms and conditions will control.

3. Eligibility for Our Service

1. By using our Services, you represent and warrant that you have attained the age of majority where you reside (18 years of age in most jurisdictions) and are otherwise capable of entering into binding contracts including this Agreement.

2. If you are using our Services on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.

4. Accounts and Registration

1. To access our Services, you will be required to register for an account. Users may not register for more than one account, nor shall a user use a fictitious name to register for an account.

2. When you register for an account, you may be required to provide us with some information about yourself (such as your name, date of birth, e-mail address, phone number, company name or other personal information). Some of this information may be of a confidential nature and may include personal identifying information (all "Your Information"). 

3. If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity or age.  You also agree to keep Your Information current and to update Your Information if any of Your Information changes. 

4. Our collection, use and disclosure of Your Information is governed by this Agreement and our Privacy Policy.

5. Privacy and Your Personal Information

For information about the Swappy Car data protection practices and privacy policies, please read our Privacy Policy here This policy explains how we treat your personal information, and protect your privacy when you use the Services. You agree to the use of your data in accordance with Swappy Car Privacy Policy.

6. Account Management

1. If you have been issued login credentials by Swappy Car in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account, even if you authorize other parties to access your account. You may not register for more than one account. You, and not Swappy Car, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Swappy Car immediately.

2. Swappy Car may send notices to the email address or text messages to your mobile phone registered with your account. You must keep your email address, mobile phone number and, where applicable, your contact details and payment details associated with your account current and accurate.

3. We reserve the right to modify, suspend or terminate the Service, your account or your access to the Service for any reason, without notice, at any time, and without liability to you.

4. You can cancel your account at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.

 7. Suspension and Termination of Services

1. Swappy Car may limit, suspend or terminate the Services to you if you fail to comply with these Terms, the Privacy Policy or if you use the Services in a way that causes legal liability to us or disrupts use of the Service by other users.

2. Swappy Car may also suspend providing the Services to you if we are investigating suspected misconduct by you. Swappy Car will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action.

3. If your account is limited, suspended or terminated you agree that Swappy Car shall have no liability to you.

8.  Your Access and Use of our Services

1. Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. Access to our Services may not be available in all locations. You are only entitled to access and use our Services for lawful purposes and pursuant to the terms and conditions of this Agreement and our Privacy Policy. Any action by you that, in our sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of our Services; or (iii) through the use of our Services, defames, abuses, harasses, offends or threatens others, shall not be permitted, and may result in your loss of the right to access and use our Services.

2. The rights granted to you in these Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (iii) you shall not access the Services in order to build a similar or competitive Service; and (iv) 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. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.

3. Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission.  Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.

4. Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services. 

5. Our Services may now, or in the future, have "publicly accessible areas" that allow users to post User Content (hereafter defined) that will be accessible by the public or the user population generally. As a user of the Services, you acknowledge and affirmatively agree that in the course of using the Services you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that Swappy Car shall not, under any circumstances, be liable in any way for any User Content.

6. You shall not use any communication systems provided on our Services including, without limitation email, for any commercial or solicitation purposes.  You shall not solicit for commercial purposes any users of our Services without our prior written permission.

7. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your purchases or use of the Services.

 9. Intellectual Property Rights

1. Our names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively the "Proprietary Marks"), and are owned by Swappy Car. You may not use the Proprietary Marks without our prior written permission.

2. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.

3. The information, content, documentation, guides, descriptions, advice, data, software and any other content viewable on, contained in, or downloadable from our Services (collectively, "Our Content"), including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, audio files, line art, icons and renditions, are copyrighted by us, or otherwise licensed to us or Our Content suppliers.

4. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the "Collective Work").

5. All software and technology used on, or within our Services is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading, listening to, or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.

6. You are solely responsible for any damages resulting from your infringement of our, or any third-parties, intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us, or our affiliates, as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.

10. Proprietary Rights

As between Swappy Car and you, Swappy Car or its licensors own and reserve all right, title and interest in and to the Service and all hardware, and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with these Terms. No title to, or ownership of, any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Swappy Car.

11. Use of Our Content

1. We grant you a limited, revocable, non-exclusive, non-sublicensable license to access, print, download or otherwise make personal use of Our Content and the Collective Work for your noncommercial personal use provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing.  

2. You may not modify Our Content or the Collective Work, or utilize them for any commercial purpose or any other public display, performance, sale or rental; nor may you decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.

12. User Content Rights and Related Responsibilities; License to Swappy Car

1. "User Content" means, without limitation, any images, photos, videos, textual material, digital files, music, audio, comments, personal profile (including your photo), artwork, messages, reviews, feedback, suggestions and documents, or any other content you upload, transmit or otherwise make available to Swappy Car via our Services, or for display on our Service. You represent and warrant that you own or otherwise control the rights to your User Content and that each and every part thereof, is an original work by you, or you have obtained all rights, licenses, consents and permissions necessary in order to use those parts at any and all times. You further agree to indemnify Swappy Car and its affiliates for all claims arising from or in connection with any claims to any rights in your User Content or any damages arising from your User Content.

2. You retain all right, title and interest that you have, or have received from others, in the User Content that you submit to Swappy Car.  By submitting User Content on or through the Service, you grant Swappy Car a perpetual, worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, re-use, reproduce, transmit, print, publish, display, exhibit, distribute, re-distribute, copy, host, store, cache, archive, index, categorize, comment on, broadcast, stream, download, edit, alter, modify, adapt, translate, create derivative works based upon, and publicly perform such User Content without attribution, and without the  requirement of any permission from, or payment to you or to any other person or entity, in any manner including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes, and in any and all media now known or hereafter devised.

3. In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.

4. You agree that any User Content you submit to our Service in a publicly viewable area of our Service may be viewed by other users, any person visiting or participating in the Service and by the public in general.

5. You are solely responsible for your User Content, including, without limitation, reviews, comments and feedback, and any damages suffered by Swappy Car resulting there from.

6. It is possible that users may post or transmit offensive materials that you may be involuntarily exposed to, and you hereby agree to waive, and do waive, any legal or equitable rights or remedies you have or may have against Swappy Car with respect to said offensive User Content.

7. Swappy Car may block, remove or return any User Content at any time for any reason whatsoever, or for no reason at all. We are not responsible for the authenticity, accuracy, completeness, appropriateness, or legality of User Content.

8. You represent and warrant that all information that you submit is authentic, accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.

9. User Content is not considered to be confidential. You agree not to submit User Content in which you have any expectation of privacy.

10. Do not post publicly any private information or information you do not wish to be seen by others, or which you do not want to be shared or edited by others. Swappy Car has no control over User Content once posted to a publicly viewable area of our Service, and it is possible that visitors to the Service may copy User Content and repost it elsewhere.

11. If you provide Swappy Car with any suggestions for improvement to our Service, or new features or functions to add to our Service, you do so without the expectation of any compensation therefore, and grant to us a perpetual, irrevocable, fully transferable and sub-licensable worldwide license to use and exploit your suggestion without any royalty or compensation to you.

13. Acceptable Use Guidelines for Our Services and Chat Features

1. Swappy Car is committed to providing a safe and friendly platform. To ensure the best possible experience for all users of our Services, and our Chat Service, we have established some basic acceptable use guidelines and rules for your conduct. By using our Services, you agree that you have read and will follow the rules and guidelines set forth below. Please take a moment to acquaint yourself with these important rules and guidelines. In order to preserve a climate that encourages productive, civil and meaningful interaction, Swappy Car reserves the right to suspend or terminate a user’s account for a violation of these rules.

2. You agree not to use our Service, or our Chat Service, to transmit or distribute any messages or User Content as defined in these Terms of Use that is false, offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, defamatory, racially or ethnically offensive, invasive of privacy or publicity rights, inclusive of hate speech, violates the rights of any party, gives rise to liability, is politically oriented, contains corrupted data or any other harmful, disruptive, or destructive files, or that would constitute or encourage a criminal offense.

3. Swappy Car reserves the right to suspend or terminate any user account at any time for any reason, with or without warning and without liability to the user. If you violate these guidelines, we may suspend or terminate your account and notify law enforcement. Please respect and honor these guidelines and report any violations to support@swappycar.com. We reserve the right to modify these rules with or without notice at any time. If you have questions, comments, concerns or feedback regarding these guidelines or our Services, please contact us at support@swappycar.com.

14. Geolocation

Swappy Car may collect and store location data to provide you the features and functionality of the Service. We may collect your location information through your IP address, WiFi, Bluetooth, and GPS coordinates (e.g., latitude/longitude) available through your mobile device. We may also gather information about your location using other technologies and sensors which may provide us with information about nearby devices, WiFi access points and networks, and nearby cell towers. We may also share de-identified (anonymous) location information with our partners for tailored advertising, attribution, analytics, research and other purposes. If you want to opt-out of the collection of your location data, please adjust your settings in your mobile device to limit our access to your location data.

15. Reward Program

From time to time Swappy Car may provide users with a Rewards Program, the terms of which shall be posted on our Service. Swappy Car reserves the right to change, modify or eliminate the Rewards Program and all or any portion of these Rewards Terms, or any policy pertaining to the Rewards Program, at any time and in our sole discretion, including our right to discontinue or change the Swappy Car Points award schedule, the benefits available or change the expiration date of Swappy Car Points received under the Rewards Program, including how Swappy Car Points are earned, calculated or redeemed. Unless we state otherwise, the amended Rewards Terms will be effective immediately and your continued participation in the Rewards Program after the amended terms are posted will confirm your acceptance of the changes. If you do not agree to the amended Rewards Terms, you must stop participating in the Rewards Program.

16. Information Accuracy

1. We attempt to ensure that information on this Service is complete, accurate and current. Despite our best efforts, the information on our Service may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy, or currency of any information on the Service.

2. Furthermore, information on the Service may contain typographical errors, inaccuracies, or omissions. We reserve the right to correct or make changes in such information without notice.

17. Third Party Links, Services and Content

The Service may contain features, services and functionalities linking you to, or providing you with access to third party services, products, advertisers, content, websites, directories, servers, networks, systems, information, databases, applications, software, programs, and the Internet as a whole. Because we have no control over such websites and resources, we are not responsible for the availability of such external sites or resources. Furthermore we do not endorse, and are not responsible or liable for any content, products, advertising or other materials on, or available from, such websites or resources. When you visit or use a third party’s website you agree to read and consent to the third party’s Terms of Service and Privacy Policy, and you release us from any liability.

18. Electronic Communications

1. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by electronic means including, without limitation, email, telephone, text, SMS or by posting notices on our Services.  When you use our Services, you consent to communicating with us electronically. 

2. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Additional charges from your telecommunication carrier may apply.

19. Third Party Social Networking

If you access our Services through a third party social networking site or application including, but not limited to, Facebook, LinkedIn, or Twitter, you authorize Swappy Car to access certain information about you that is made available through that third party social networking site and further authorize us to collect, store, retain and use, your information in accordance with our Privacy Policy. The information that we collect depends on the privacy and security setting you have established with the third party social networking site or application.

20. Security

Violating the security of our Services is prohibited and may result in criminal and civil liability. Swappy Car may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.

21. Swappy Car Mobile App Software License

We make software available to users in order to access the Swappy Car App via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Swappy Car does not warrant that the Mobile Software will be compatible with your mobile device. Swappy Car hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Swappy Car account on a mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright, trademark and other proprietary rights notices on the Mobile Software. You acknowledge that Swappy Car may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Swappy Car or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Swappy Car reserves all rights not expressly granted under this Agreement. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Swappy Car App.

22. Mobile Application from a Third Party App Store

The following applies to any App Store Sourced Application accessed through or downloaded from a Third Party App Store:

1. You acknowledge and agree that (i) the Terms are concluded between you and Swappy Car only, and not the Third Party App Store, and (ii) Swappy Car, not the Third Party App Store, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the Third Party App Store Terms of Use. 

2. You acknowledge that the Third Party App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the Third Party App Store, and the Third Party App Store will refund the purchase price for the App Store Sourced Application to you, and to the maximum extent permitted by applicable law, the Third Party App Store will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Swappy Car and the Third Party App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Swappy Car.

4. You and Swappy Car acknowledge that, as between Swappy Car and the Third Party App Store, the Third Party App Store is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

5. You and Swappy Car acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Swappy Car and the Third Party App Store, Swappy Car, not the Third Party App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.

6. You and Swappy Car acknowledge and agree that the Third Party App Store, and their subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, the Third Party App Store will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

7. Without limiting our Terms of Use, you must comply with all applicable third-party terms of agreement when using the Third Party App Store Sourced Application.

23. Disclaimers; No Warranties

1. ALL SERVICES AVAILABLE FROM SWAPPY CAR ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SWAPPY CAR AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, (COLLECTIVELY, THE “SWAPPY CAR PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER THEY HAVE BEEN PROVIDED BY SWAPPY CAR OR OUR INDEPENDENT THIRD PARTY SERVICE PROVIDERS.

2. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SERVICES OR PRODUCTS AVAILABLE THROUGH THE USE OF OUR SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY SERVICES, PRODUCTS OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM OR THOUGH US WILL MEET YOUR EXPECTATIONS.

3. THE SERVICES CAN INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. FURTHERMORE, THE INFORMATION OR SERVICES ON THIS SITE MAY BE OUT OF DATE. WE MAY MAKE CHANGES TO THE SERVICES AND INFORMATION ON THIS SITE AT ANY TIME WITHOUT NOTICE; HOWEVER, WE HAVE NO OBLIGATION TO DO SO.

4. THE SWAPPY CAR PARTIES DO NOT WARRANT THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PRODUCT DESCRIPTION OR OTHER CONTENT OFFERED AS PART OF THE SERVICES, ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.

5. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. IF YOU DOWNLOAD ANY CONTENT FROM THE SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE SERVICE.

6. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICE OR ANY FEATURE OR PART THEREOF AT ANY TIME.

7. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME PARTS OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

24. Limitation Of Liability

1. IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY PROPERTY OR PERSONAL INJURY TO YOU OR OTHERS, OR LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF OUR SERVICES; (II) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; OR (V) YOUR RELIANCE UPON, OR USE OF, OUR CONTENT OR THE COLLECTIVE WORK, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. 

2. THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN OUR SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OUR SERVICES.

3. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, PUBLIC HEALTH EMERGENCIES, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.

4. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF SWAPPY CAR, AND OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS, IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF USD $100.

5. YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

6. CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

25. Interaction With Others; No Identity or Background Verifications

1. SWAPPY CAR DOES NOT CONDUCT ANY CRIMINAL OR OTHER BACKGROUND VERIFICATION CHECK OR SCREENING OF USERS. YOU ASSUME ALL RISK WHEN USING THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL RISKS ASSOCIATED WITH ANY ONLINE OR OFFLINE PERSONAL INTERACTIONS WITH OTHER USERS.

2. IN NO EVENT SHALL SWAPPY CAR, ITS EMPLOYEES, CONSULTANTS, EXECUTIVES OR OFFICERS BE LIABLE (DIRECTLY OR INDIRECTLY) FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF A USER OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, THEFT, BODILY INJURY, EMOTIONAL DISTRESS, DEATH AND/OR ANY OTHER DAMAGES (INCLUDING PROPERTY DAMAGE) RESULTING FROM COMMUNICATIONS WITH, CONTACT WITH OR INTERACTION WITH OTHER USERS.

3. USERS SHOULD NOT PROVIDE THEIR FINANCIAL INFORMATION, INCLUDING, BUT NOT LIMITED TO CREDIT CARD OR BANK ACCOUNT INFORMATION, OR WIRE OR OTHERWISE SEND MONEY, TO OTHER USERS

26. Indemnity

1. You agree that you will be personally responsible for your use of the Service; and you further agree to defend, indemnify and hold harmless Swappy Car and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of, the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your infringement upon the property rights, intellectual property rights (copyrights and trademarks) or other rights of others; and (iv) your violation of any third party right, including without limitation publicity, confidentiality, or privacy right.

2. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.

27. Release

1. By using the Services, you release, to the maximum extent allowed by law, Swappy Car, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, your use of our Services.

2. If you are a California resident, you waive California Civil Code §1542, which says: “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.”  

3. Interruption of Service

   1. Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.

   2. You agree that we will not be liable to you or to any third party for any interruption of the Services or any part thereof.

29. Governing Law

This Agreement, and any separate agreements whereby we provide you Services, shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. The parties hereby consent to the exclusive jurisdiction and venue in the state and federal courts in the State of New York in and for the County in which Swappy Car has established its principal office.

30. Our Remedies

1. You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. 

2. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the state courts of record or a United States District Court for the State of New York in and for the County in which Swappy Car has established its principal office. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.  

31. Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY. THIS SECTION CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS SECTION ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

 

You and Swappy Car agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Swappy Car (including any claim or dispute between you and a third-party agent of Swappy Car) that relates in any way to or arises out of this or previous versions of this Agreement, your use of or access to the Services, the actions of Swappy Car or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Dispute Resolution Section.

1. Applicable Law. You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New York, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Swappy Car, except as otherwise stated in this Agreement.

2. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Swappy Car, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by entering into these Terms, you and Swappy Car are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. If you reside in the U.S., the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

3. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND Swappy Car AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Swappy Car AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).

4. Pre-Arbitration Dispute Resolution. We at Swappy Car believe that most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at support@swappycar.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Swappy Car should be sent to the address provided in the Contact Us section at the end of these Terms of Service ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Swappy Car and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Swappy Car may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Swappy Car or you shall not be disclosed to the arbitrator during the arbitration proceeding.

5. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope and enforceability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Swappy Car and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for USD $10,000 or less, Swappy Car agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds USD $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys' fees will be governed by the AAA Rules.

6. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the subsection above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.

8. Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Arbitration Agreement above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of New York in and for the County in which Swappy Car has established its principal office. You and we agree to submit to the personal jurisdiction of the courts located within the State of New York for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of New York; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of New York.

32. Law Enforcement

1. Swappy Car is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If Swappy Car receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.

2. Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), Swappy Car may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. Swappy Car will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.

33. Amendments to this Agreement

We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services.  You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement.  Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.

34. Severability

If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.

35. No Waiver

Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.

36. Entire Understanding

This Agreement and the Privacy Policy represent the entire understanding and agreement between you and us regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same.

 

CONTACT US:

If you have to provide us with any Notice, or have any questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at support@swappycar.com

 

Last updated: May 22nd, 2023