Terms of Service
Effective October 1, 2006
Important: Please read these terms and conditions (“Agreement”) carefully as they form a legal agreement between you and Swirl Mobile. All rights not expressly granted under this Agreement are reserved by us.
Confirming that you accept these terms or installing or using the Software or accessing the Service constitutes your acceptance of all of the terms and conditions of this Agreement.
The system receiving your response is not capable of interpreting or reacting to any terms or input submitted or transmitted by you other than your acceptance or rejection of this Agreement.
If you do not agree with all of the terms and conditions of this Agreement, you must not confirm your acceptance, in which case you will not be authorized to install or use the Software or access the Service.
Definitions
In this Agreement:
- “Account” means an account with a unique username used to access and use the Service.
- “Linked Site” means any account, profile, or page you have established at a third-party web service, e.g. myspace.com, TagWorld.
- “Phone” means any mobile device capable of installing the Software.
- “Service” means the iswirl.com web site, all related Swirl web properties, and all content, code, and equipment associated with enabling the connection and communication of users, and usage of the Software.
- “Software” means Swirl Connect, the software intended to be installed on a mobile device.
- “we, us and our” means Swirl Mobile.
Use of Service
You must be at least 18 years old to be eligible to use the Software and Service. However, if you are at least 14 years old but not yet 18, you may use the Software and Service if you have your parents’ or guardians’ prior permission. No one under age 14 may use the Software and Service under any circumstances. By using the application you are representing that you are at least 18, or that you are at least 14 years old and have your parents’ permission to register for the Software and Service.
Each Account is for a single user only. We do not permit you to share your username or password for your Account with any other person. You must provide true, accurate and complete registration information. As part of the registration process, you will be asked to select a username and password and you will be responsible for all activities occurring under your username, and for keeping your password secure. In our records, your username will correspond to a unique phone identifier or phone number for you. We may refuse to grant you a username (or revoke one that has previously been granted) that impersonates someone else, is or may be protected by trademark or proprietary rights law, or is vulgar, offensive or otherwise inappropriate, as determined by us in our sole discretion.
Your use of the Service is subject to the fees set forth in the terms of service and your agreement with your cell phone carrier and any agreement you may have with us. The Service may be used and accessed by different technologies, such as SMS messaging, MMS messaging and Internet or data services through your cell phone. In addition to any fees for using the Service, these access technologies are subject to the fees regularly charged by your cell phone carrier pursuant to your agreement with the carrier.
Non-Commercial Use Only
You may not engage in advertising to, or solicitation of, other users to buy or sell any products or services through the Service. You may not transmit any chain letters or junk email to other users. It is also a violation of these rules to use any information obtained from the Service in order to advertise to, solicit, or sell to any user without their prior explicit consent.
License
This Agreement grants you a personal, non-exclusive, non-transferable, non-sublicensable right to 1) use one copy of the Software for your own personal use on a single phone, 2) access and use the Service from one home PC and one remote PC. We reserve all rights in the Software not expressly granted herein, including without limitation, ownership and proprietary rights.
You may not reproduce or distribute the Software for any purpose whatsoever. Without limiting the foregoing, you may not copy the Software to any server or location for reproduction or distribution. You may not reverse engineer, decompile or disassemble the Software, or otherwise attempt to derive the source code from the Software (or the underlying structure, sequence, organization or algorithms), except to the limited extent expressly permitted by applicable law. The restrictions contained herein apply equally to any updates that may be provided to you by us.
The license granted under this Agreement is personal to you, and neither your rights nor any copy of the Software may be sold, assigned, distributed, transferred or sublicensed by you to any other person, in any form (including electronic media), without our prior written consent. Any transfer without our prior written consent will be null and void and will automatically terminate your right to use the Service and Software or possess the Software.
Your Obligations
By accepting this Agreement, you undertake for the duration of this Agreement:
- To provide complete and accurate information in the registration form you submit as part of the download process, and to ensure that this information does not conflict with the information provided in your Linked Sites.
- Not to reproduce (except in random access memory), translate, modify, lease, rent, loan, redistribute, sub-lease, sub-license or create derivative works of the Software or the Service.
- Not to reproduce and not remove, modify or obscure any copyright notice, trademark or any other proprietary notice that we place in the Software as it appears in the Software.
- Not to defame, abuse, harass, stalk, threaten or otherwise violate the rights of others by your use of the Software or the Service.
- Not to use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service.
- Not to publish, distribute and/or disseminate any harmful, vulgar, obscene, indecent, unlawful, libelous, profane, defamatory, infringing, inappropriate, hateful or racially, ethnically, or otherwise objectionable material or information via the Software or the Service.
- Not to allow the transmission or posting of any materials that contain in any form software viruses or programs such as Trojan horses, worms, time bombs, cancel-bots, computer code, files or programs designed to interrupt, destroy or limit the functionality of the Software, the Service, or any other computer hardware, software, or telecommunications equipment.
- Not to attempt to gain unauthorized access to the Service, other accounts, computer systems, or networks connected to the Service, through password mining or any other means.
- Not to use the Service or the Software in an unlawful manner or in any other manner that might damage, disable, overburden or impair the Software, the Service, or any other third party computer hardware or software.
- Not to use the Service or the Software in any manner that violates any law or regulation or might infringe any patent, trademark, copyright, rights of privacy, rights of publicity, or any other rights of third parties.
- Not to interfere with any third party’s use or enjoyment of the Software or the Service.
- Not to collect any information about other users (including usernames and/or email addresses) for unauthorized purposes.
- Not to reformat or frame any portion of the web pages that are part of the Service.
- Not to create user accounts by automated means or under false or fraudulent pretenses.
- Not to create or transmit unwanted electronic communications such as spam, or chain letters to other users.
Software and Service
You acknowledge that you must install the Software on a Phone in order to use the Service and that you are responsible for downloading and installing the Software. While we use reasonable endeavors to ensure that the Software is virus-free, we cannot and do not guarantee that the Software will be free of all viruses. It is your responsibility to virus-check the Software before installing it.
The Software and the Service may be updated or upgraded from time to time by us at our sole discretion. We may, but are under no obligation to, provide you with any updates or upgrades. Any updated or upgraded versions of the Software and/or the Service will be subject to the terms stated by us as prevailing at the time.
All updated versions of the Software and the Service shall remain subject to the terms of this Agreement. You acknowledge that you are responsible for downloading and installing such updated versions of the Software and the Service. We maintain the right to withdraw support for out of date versions of the Software and the Service
The Software and the Service are provided with limited technical support. We have no obligation to provide maintenance services or additional technical support for the Software or the Service.
Swirl assumes no responsibility for user communications, including but not limited to any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction, or unauthorized access to, or alteration of user communications.
Swirl is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Web site or combination thereof, including but not limited to injury or damage to users' or to any other person's computer related to or resulting from participating in the Service or downloading materials or Content in connection with the Service.
Under no circumstances will Swirl be responsible for any loss or damage, including but not limited to personal injury or death, resulting from anyone's use of the Service, any Content posted on or in association with the Service, or any interactions between users of the Service, whether online or offline.
Swirl cannot guarantee and does not promise any specific results from use of the Service. The Service may be temporarily unavailable from time to time for maintenance or other reasons.
Intellectual Property
All service marks, logos, trade names, trade dress, and trademarks of Swirl (“Marks”) are the exclusive property of Swirl Mobile and nothing in this Agreement shall grant you the license to use such Marks. All property rights, title, and interest in the Software and Services, and all copyright, trade secret rights, patents, computer code, audio, graphics, multimedia, images, sounds, and text incorporated into the Software or Services, and any other intellectual property or proprietary rights of any kind existing anywhere in the world now or in the future in and to the Software and the Service, and all copies of the Software regardless of the form or media on which it exists, shall at all times remain the exclusive property of us and/or our licensors and are protected by United States of America copyright laws and international copyright treaty provisions. Any violation of the terms set forth herein is expressly prohibited by law and may result in severe civil and criminal penalties.
Links available on the web site may enable you to leave the iswirl.com web site. We do not control or endorse the content of third-party web sites. The Linked Sites are not under the control of Swirl, and we are not responsible for the contents therein, or any changes or updates to such sites. You are responsible for taking precaution to ensure that whatever you select for your use, whether on Swirl’s web properties or the sites of third parties, is free of viruses, worms, Trojan horses, and other items of a destructive nature.
Infringement of Your Copyright
It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that your copyright has been infringed on the Service, please comply with the following information for filing or responding to a notice of infringement.
To file a notice of copyright infringement with us, please send a written communication by regular mail or express delivery that sets forth the items specified below. If you are not sure whether certain material of yours is protected by copyright, we suggest that you first contact an attorney. For us to process your request, please do the following:
- Identify in sufficient detail the material that you believe has been infringed.
- Identify the material that you claim is infringing the material listed in item #1 above.
- Provide information reasonably sufficient to permit us to contact you (email address is preferred).
- Provide information, if possible, sufficient to permit us to notify the user(s) who posted the content that allegedly contains infringing material (email address is preferred).
- Include the following statement: I have a good faith belief that use of the copyrighted material described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.
- Include the following statement: I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Sign the paper.
- Send the written communication to Swirl.
The user(s) who posted the allegedly infringing content may make a counter notification. When we receive a counter notification, we will typically forward a copy to the person who filed the original notification and reinstate the material in question.
To file a counter notification with us, please provide a written communication by regular mail or express delivery that sets forth the items specified below. If you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney. For us to process your counter notification, please do the following:
- Identify the specific URLs of material that we have removed or to which we have disabled access.
- Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Raleigh, North Carolina if your address is outside of the United States), and that you will accept service of process from the person who provided notification to us of the infringement or an agent of such person.
- Include the following statement: I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
- Sign the paper.
- Send the written communication to Swirl.
Content Posted on the Service
As part or your use of the Service, you may publish or display on the Service or transmit to other users (hereinafter, post) various materials, including messages, photos, graphics, text, audio, video, location information, profiles, and any other content, data or information (collectively, Content).
You are solely responsible for the Content that you post on the Service.
You understand and agree that we may review and delete any Content that in our sole judgment violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users. In the event that we suspect or are made aware of Content that might violate these terms, we reserve the right to immediately suspend and/or delete such Content and suspend your use of the Service pending investigation and review.
By posting Content on the Service, you automatically grant to Swirl, and you represent and warrant that you have the right to grant, an irrevocable, perpetual, transferable, non-exclusive, fully paid, royalty-free, worldwide license to use, copy, publicly perform and display, market and distribute and otherwise exploit in any manner, commercial or otherwise, and create derivative works of such Content and incorporate such Content into other works, and to exercise these rights over such derivative works and other works in which the Content is incorporated, and to grant and authorize sublicenses of the foregoing.
Member Disputes
You are solely responsible for your interactions with other users of the Service. We reserve the right, but have no obligation, to monitor disputes between you and other users.
Privacy Policy
Use of the Service is also governed by our Privacy Policy, which is incorporated into this Agreement by this reference. By consenting to this Agreement, you are also consenting to the terms of the Privacy Policy. If you do not consent to all of the terms of the Privacy Policy, you may not use the Service.
Damage to Your Phone
If, in our reasonable opinion, the Software has damaged your Phone, we shall at our sole discretion, either 1) replace that Phone with a suitable equivalent; or 2) pay to you the lesser of US$250 or a sum equal to the value of that Phone taking into account fair wear and tear.
We will not be responsible for any damage caused to your Phone by the Software:
- To the extent that it is attributable to further use of the Phone after giving us notice of the defect.
- To the extent that it is attributable to the use of the Software with third party software.
- If the damage arises because you failed to follow any instructions given by us as to the installation or use of the Software.
- If you alter, modify, or repair the Software without our written consent.
We will not be responsible for any damage caused to your Phone by the Software unless:
- You give us written notice of the damage within 14 days of the time when you discover or ought reasonably to have discovered the damage; and
- We are given a reasonable opportunity after receiving notice of the damage to examine the Phone and you have (if asked by us to do so) returned the Phone to us at your cost for the examination to take place.
If we comply with the provisions outlined herein, we will have no further liability to you regarding damage to your Phone arising from use of the Software.
Disclaimer
We use reasonable endeavors to ensure that the Service is available 24 hours a day, 7 days a week. However, there will be occasions when the operation of the Service will be interrupted for maintenance, upgrades, and emergency repairs, or due to failure of telecommunications links and equipment or other causes that are beyond our control. We will take reasonable steps to minimize such disruption where it is within our reasonable control. However, you acknowledge that we will not be responsible for any loss that you may suffer as a result of the Service being unavailable under such circumstances.
You acknowledge that the Software is experimental and may not functional correctly or at all on all Phones or in all environments.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE AND THE SERVICE ARE PROVIDED “AS IS.” SWIRL AND ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, NETWORK SERVICE PROVIDERS, PARTNERS, OR EMPLOYEES MAKE NO WARRANTY TO YOU OR ANY OTHER PERSON OR ENTITY OR ASSURANCES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF TITLE, DESCRIPTION, QUALITY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT THE SOFTWARE OR THE SERVICE WILL BE ERROR-FREE OR FREE FROM INTERRUPTION OR OTHER FAILURES OR THAT THE SOFTWARE OR THE SERVICE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE PERFORMANCE, USE OR RESULTS OF THE USE OF THE SOFTWARE AND THE SERVICE OR THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFTWARE OR SERVICES.
NEITHER SWIRL NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, NETWORK SERVICE PROVIDERS, PARTNERS, OR EMPLOYEES WARRANTS THAT THE SOFTWARE OR SERVICES WILL BE FREE FROM ANY VIRUS OR OTHER CODE THAT IS CONTAMINATING OR DESTRUCTIVE BY NATURE AND YOU ARE RESPONSIBLE FOR IMPLEMENTING AND MAINTAINING SUFFICIENT PROCEDURES TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT AS WELL AS PROTECTION FROM SUCH VIRUSES OR OTHER CODE THAT MAY CONTAMINATE OR DESTROY YOUR SYSTEM OR DATA.
This disclaimer of warranty is an essential part of this Agreement.
No advice or information, whether written or oral, obtained by you from Swirl or from or through the site shall create any warranty not expressly stated in the terms of use.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE, OUR AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, NETWORK SERVICE PROVIDERS, PARTNERS, OR EMPLOYEES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY IN ANY RESPECT FOR ANY COSTS OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF THE SOFTWARE OR SERVICE, UNDER ANY CONTRACT, BREACH OF DUTY OF CARE, STRICT LIABILITY, ACTUAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE, SPECIAL DAMAGES OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF OR INTERRUPTION TO BUSINESS; LOSS OF REPUTATION; LOSS OF REVENUE, PROFITS, USE, DATA, GOODWILL, OR BUSINESS OPPORTUNITY; LOSS OF USE; INABILITY TO USE THE SERVICE OR THE SOFTWARE; LOSS OR DAMAGE TO OR CORRUPTION OF DATA; DAMAGE TO ANY OTHER SOFTWARE, HARDWARE OR OTHER EQUIPMENT; THE UNAUTHORIZED ACCESS TO OR ALTERATION OF DATA; THE UNAUTHORIZED DISCLOSURE OF SENSITIVE, VALUABLE, OR CONFIDENTIAL INFORMATION; THE DELETION, FAILURE TO STORE, DELIVERY, FAILURE TO DELIVER OR UNTIMELY DELIVERY OF CONTENT; LOSS ATTRIBUTABLE TO YOUR FAILURE TO MAKE AND RETAIN REASONABLE BACK UPS OF YOUR MATERIAL; ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR ANY COSTS OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS; OF ANY KIND OR NATURE WHATSOEVER, ARISING IN ANY MANNER FROM ANY CAUSE OF ACTION OR CLAIM RELATING TO THIS AGREEMENT. OTHERWISE IF, NOTWITHSTANDING OUR DISCLAIMER OF LIABILITY SET OUT, WE ARE HELD TO HAVE ANY RESPONSIBILITY TO YOU IN RELATION TO THE SOFTWARE OR THE SERVICE WHETHER UNDER CONTRACT, BREACH OF DUTY OF CARE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, OUR MAXIMUM LIABILITY TO YOU SHALL NOT EXCEED US$250.
You agree to indemnify and hold Swirl, its officers, directors, employees, agents, shareholders, licensors, suppliers, and any third party distributors harmless from and against any and all damages, losses, costs including attorney fees and expenses resulting from any violation by you of this Agreement or asserted by any third party due to or arising out of your use of or conduct with respect to the Software or Services.
Termination
We reserve the right to terminate this Agreement and your use of the Software and Service at any time and for any reason or no reason at all. If we reasonably believe that you have failed to comply with any provision of this Agreement, we may terminate this Agreement immediately with or without any prior notice. Termination is not an exclusive remedy and all other remedies will be available to us if you fail to comply with the provisions of this Agreement, whether or not we decide to terminate this Agreement.
We may, at our sole discretion and at any time, and from time to time, modify or discontinue temporarily or permanently providing the Software or Service or any part thereof with or without notice. You agree we will not be liable to you or any third party for any termination, suspension or modification of the Software or Service. Swirl’s right to modify the Software or Services applies to all or any aspect of the Software or Services, including, without limitation, changes to the pricing of the Services.Your continued access or use of the Software or Services shall be deemed your acceptance of such modifications.
You may terminate this Agreement at any time by giving us written notice of your intention to do so.
Upon any termination of this Agreement, you shall immediately destroy all copies of the Software in your possession or control and cease all use of the Service. All rights granted to you shall revert to us.
Export Control Laws
The export and re-export of the Software and other materials are controlled by the export laws and regulations of Canada and the United States, as they may be amended from time to time. Accordingly, you certify that you are aware of and will comply with all applicable export rules and regulations, including the responsibility to obtain a license for the export or re-export of the Software and other materials to any destination requiring such a license.
In addition, neither the Software nor Services may be exported or re-exported to Cuba, Iran, Libya, Sudan, or any other country to which Canada or the United States prohibits the export of goods, technology, or services or to nationals of those countries, wherever located. Moreover, neither the Software nor Services may be distributed to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals maintained by the U.S. government. By downloading the Software, you are certifying that you are not a national of one of the above-listed countries or of any other country to which Canada or the United States embargoes goods, services, or technology and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
Jurisdiction and Other Provisions
This Agreement and the relationship between Swirl and you shall be governed in accordance with the laws of the State of North Carolina. Any dispute between you and Swirl regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in the State of North Carolina. You agree to submit to exclusive jurisdiction in the State of North Carolina, and you expressly waive all defenses to jurisdiction.
This Agreement is the entire agreement between you and Swirl relating to your use of the Software or Service and supersedes any other communications or advertising with respect to the Software and Service. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Swirl’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. Swirl may assign its rights and duties under this Agreement to any party at any time without notice to you.
Modifications of Agreement
Swirl may modify this Agreement at any time without providing notice to you. Such modification will be made by posting a revised agreement on its web site and such modification shall be deemed effective immediately upon posting of the modified Agreement. Your continued access or use of the Software or Services shall be deemed your acceptance of the modified Agreement. You agree to check our web site periodically to review such modifications.
Contacting Us
If you have any questions about these terms or the practices of this site, please contact us.