The following Terms and Conditions of Use (the “Terms”) applies to the use of the Swagit Brease services (the “Services”) and Swagit Brease’s website (the “Website”), which is owned and operated by Swagit Productions, LLC, a Texas Limited Liability Company.
To obtain full access to the Website and use our Services, Visitors are required to become a User and register and select a password and user name. If you register, you must provide accurate and complete registration information and keep this information up to date. Failure to do so shall constitute a breach of the Terms, which may result in immediate termination of your account. You may not: (i) enter, select or use a false name or an email address owned or controlled by another person with the intent to impersonate that person; (ii) use as a user ID name subject to any rights of a person other than yourself without appropriate authorization; or (iii) create more than one account per person. Swagit reserves the right to refuse registration or cancel a user ID in its discretion. You shall be responsible for maintaining the confidentiality of your password and are fully responsible for all activities that occur under your user ID and password. You agree to (i) immediately notify Swagit of any unauthorized use of your user ID or password, and (ii) ensure that you exit from your account at the end of each session.
By using the Website you represent and warrant that you have the right, authority, and capacity to enter into this agreement with Swagit (the “Agreement”) on the conditions as set forth in these Terms.
Swagit reserves the right to change its fees from time to time at its sole discretion. Payments are final and non-refundable. However, if during a calendar month the Website and our Services are not fully operational for at least 99% of the time, due to a cause attributable to Swagit, Swagit will refund the subscription fee for that month at the User’s request, WHICH WILL BE THE ONLY REMEDY AND OBLIGATION OF SWAGIT IN CONNECTION TO SUCH EVENT.
5. Use of the Website.
Subject to the restrictions in the Terms, you may use the Website to upload and display data, text, scripts, sound, photographs, graphics, video, interactive features, and other works, provided that you are the rightful owner of such works ("Content"). You may not copy or distribute any portion of the Website for any purpose. Swagit does not control the Content uploaded by third parties and does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Swagit be liable in any way for any Content, including any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of your use of, or reliance on, any Content. You are responsible for complying with all laws applicable to the Content you submit via the Website.
6. User and Visitor Restrictions.
You agree that you shall not, nor will you enable and/or allow third parties – to: (i) copy, modify, translate, or reverse engineer any portion of the Website; (ii) remove any copyright, trademark or other proprietary rights notices on the Website or on any material accessed via the Website; (iii) use any robot, spider, other automated device, or manual process to monitor or copy the Website or parts thereof; (iv) collect any information about other Users or Visitors (including user names and/or email addresses); (v) reformat or frame any portion of the web pages that are part of the Website, (vi) create user accounts by automated means or under false or fraudulent pretenses; (vii) create or transmit unwanted electronic communications such as "spam" to other Users or Visitors, or otherwise interfere with other Users or Visitors’ enjoyment of the Website; (viii) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (ix) use the Website to violate the security of any computer network, crack passwords or security encryption codes, upload, transfer or store illegal material including material that can be deemed threatening or obscene; (x) copy or store any Content offered on the Website for other than your own use, unless it is your own content; (xi) use any device, software or routine that interferes with the proper working of the Website, or otherwise attempt to interfere with the proper working of the Website; (xii) take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure; (xiii) use the Website, intentionally or unintentionally, to violate any applicable local, state, national or international law; or (xiv) collect or store personal data about other Users or Visitors, unless such data is provided by Swagit. Swagit may impose limits on certain features or services or restrict your access to parts or all of the Website, without notice.
You are solely responsible for any Content and other material that you upload, submit, publish or display via our Website and Services. You may not: (i) post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights; (ii) submit any Content or material that infringes, misappropriates or violates the intellectual property, publicity, privacy or other rights of any party; (iii) provide any Content that falsely express or imply that such Content or material is sponsored or endorsed by Swagit; (iv) provide any Content that is unlawful or that promotes or encourages illegal activity. You understand and agree that Swagit may review and delete any Content that in the sole judgment of Swagit violates the Terms or which might be offensive, illegal, inappropriate, or that might violate the rights of, harm, or threaten the safety of others. You agree that you will only provide Content that you believe to be true and you will not purposely provide false or misleading information. By uploading Content onto the Website, you agree to and hereby do grant, and you represent and warrant that you have the right to grant, Swagit a royalty-free, fully paid up, worldwide license to use the Content to perform the Services. You may not post Content that: (i) is false or intentionally misleading; (ii) is patently offensive to third parties, such as Content or messages that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (iii) harasses or advocates harassment of another person; (iv) involves the transmission of unsolicited mass mailing or "spamming"; (v) violates the intellectual property or other proprietary rights of any person; (vi) promotes illegal activities or conduct that is abusive; (vii) is threatening, obscene, defamatory or libelous; (viii) is pornographic or sexually explicit in nature. Swagit reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates the Terms, including without limitation, removing illegal, offending and/or inappropriate communication and Content from the Website and terminating accounts of such violators or blocking your use of the Website.
10. Changes to the Agreement or the Website.
You agree and understand that the Terms and the Website may be modified by Swagit at any time without prior notice, and such modifications will be effective upon Swagit’s posting of the new terms and/or upon implementation of the new changes on the Website. It is the sole responsibility of the Users and Visitors to review the Terms periodically to become familiar with any modifications. Your continued use of the Website after any modifications indicates your acceptance of the modified Terms. Unless expressly stated otherwise by Swagit, any new features, new services, enhancements or modifications to the Website implemented after your initial access, shall be subject to the Terms. In an effort to preserve the continuity of the Website and the Services, Swagit will not be responsible for correcting errors, providing services or keeping links and downloads up to date for more than eighteen (18) months after an update or upgrade has been introduced or released.
Content and other elements comprising the Website may be works protected by copyright. You acknowledge that any underlying technology or software used in connection with the Website contains Swagit's proprietary information. You may not modify, reproduce, distribute, create derivative works of, publicly display or in any way exploit, any of the software, and/or materials available on the Website in whole or in part except as expressly provided in the Terms.
12. Copyright Policy.
Swagit respects the intellectual property of others, and we ask users of our websites to do the same. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, subscribers or account holders who are deemed to be repeat infringers. We may also at our sole discretion limit access to our Web site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
13. Disclaimer of Warranties.
THE WEBSITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, SERVICES, AND INFORMATION AVAILABLE ON OR ACCESSED BY MEANS THEREOF, IS PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SWAGIT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR (1) THE CURRENCY, ACCURACY, OR COMPLETENESS OF ANY INFORMATION AVAILABLE BY MEANS OF THE WEBSITE, (2) FOR ANY INFORMATION PROVIDED BY THIRD PARTIES AND ACCESSIBLE ON OR THROUGH THE WEBSITE, (3) FOR ANY “VIRUSES” OR MALICIOUS COMPUTER CODE TRANSMITTED ON OR THROUGH THE WEBSITE, OR (4) FOR ANY BREACH OF SECURITY OR UNAUTHORIZED ACCESS TO THE WEBSITE OR YOUR INFORMATION. SWAGIT DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SWAGIT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR ANY SERVICES OR CONTENT THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, THE SERVER ON WHICH IT IS MADE AVAILABLE, OR ANY CONNECTED SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SWAGIT IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY USER OR VISITOR OF THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER OR VISITOR OF THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
14. Limitation of Liability.
USE OF THE WEBSITE AND OUR SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, UPLOADING, USE OF, OR ACCESS TO DATA, FILES, INFORMATION, CONTENT, OR OTHER MATERIAL (INCLUDING WITHOUT LIMITATION SOFTWARE) ON OR THROUGH THE WEBSITE AND OUR SERVICES. EXCEPT TO THE EXTENT THAT LIABILITY UNDER ANY APPLICABLE LAW OR REGULATION CANNOT BE EXCLUDED, SWAGIT IS NOT LIABLE FOR LOSS OR DAMAGE OF ANY KIND WHATSOEVER ARISING AS A RESULT OF (1) INFORMATION EXPRESSLY OR IMPLIEDLY PUBLISHED ON THE WEBSITE, OR (2) ANY ERRORS IN OR OMISSIONS FROM THIS WEBSITE. UNDER NO CIRCUMSTANCES SHALL SWAGIT BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE WEBSITE AND OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SWAGIT'S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSOR OF (i) THE AMOUNT PAID BY YOU TO SWAGIT FOR THE USE OF THE WEBSITE AND OUR SERVICES IN THE MONTH PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
You agree to indemnify, defend, and hold Swagit, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (i) your access to, and/or use of, the Website and our Services, (ii) the violation of these Terms by you, or (iii) the infringement by you, or any third party using your account or user name or password, of any intellectual property or other right of any person or entity.
All notices hereunder shall be given in writing to Swagit Productions, LLC at PO Box 251002, Plano, Texas 75025-1002 or to such other address as Swagit may request. Neither this Agreement nor any portion hereof shall be assigned, sublicensed or otherwise (including by operation of law) transferred by Users or Visitors without Swagit’s prior written consent. Failure of Swagit to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. This Agreement contains the entire agreement between the parties hereto with respect to the matters contained herein. If any term or provision of this Agreement or any application thereof shall be invalid, illegal or unenforceable, the remainder of this Agreement and any other application thereof shall not be affected thereby. This Agreement shall be governed by and construed in accordance with the laws of The United States of America if you are located outside the United States, and in accordance with the laws of the State of Texas if you are located within the United States, in both cases without regard to conflict of law principles thereof. The exclusive forum for any disputes arising out of or related to this Agreement shall be an appropriate Federal court situated in Collin County in the State of Texas. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE AND OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.