SWASH & BUCKLER TERMS OF SERVICE
Last Updated — April 18, 2016
ARTICLE I: USER TERMS
- 1. General Terms of Service; Acceptance
- (a) Swash & Buckler, LLC ("Company") welcomes you to Swash & Buckler. This Terms of Service document (this "Agreement") applies to all Web, WAP and interactive services owned and/or operated by Company including, without limitation, www.swashandbuckler.com (collectively, the "Service"). This Agreement applies to all visitors and users of the Service ("you" or "User" and collectively, "Users"). By visiting, accessing and/or using the Service (whether or not you are registered), you agree to be bound by and to abide by this Agreement. If you do not agree to be bound by and to abide by this Agreement, please immediately discontinue all use of the Service. Your use of the Service is conditioned upon your prior acceptance of this Agreement in its entirety.
- (b) Company may modify this Agreement at any time, and each such modification will be effective upon its posting on the Service. Material modifications will only apply prospectively. Your continued use of the Service following any modification constitutes your agreement to be bound by and to abide by this Agreement as modified. Accordingly, please review this Agreement regularly. You can review the most current version of this Agreement at any time at https://www.swashandbuckler.com/tos.php.
- 2. Service
- (a) Service Changes; Discontinuation. Company may change or discontinue temporarily or permanently any or all of the Service at any time with or without notice. You agree that Company will not be liable to you or any third party for any modification to or discontinuance of the Service.
- (b) Service Limitations. Company cannot always anticipate technical or other operational difficulties which may result in loss of data, personalization settings or other service interruptions. You agree that the Service, including services of Company's third-party service providers, if any, are provided "AS IS" and "AS AVAILABLE". Neither Company nor its third-party service providers assume any responsibility for the timeliness, deletion or failure to deliver or store any data, communications or personalization settings. Please refer to Sections 4(a) and (b) below for full details.
- (d) Third Party Sites. The Service may provide you with links or other opportunities to use certain sites, services, products, applications or content offered by or through Company's third-party providers, including, without limitation, advertisers, content providers and e-commerce providers (each, a "Third-Party Service"). Your use of any Third-Party Service is subject to the terms and conditions associated with such Third-Party Service. Company does not own or control any Third-Party Service and is not responsible for any Third-Party Service or for the contents thereof, including, without limitation, any links that may be contained in or accessible through Third-Party Service. Company does not endorse any Third-Party Service or any products, content or communications linked to or accessible from the Service. You agree that you are wholly responsible for making your own independent judgment regarding your use of or interaction with any Third-Party Service.
- 3. General Rules
For the benefit of all Users, and to comply with applicable laws, Company has instituted certain general rules, which rules Company will construe in its sole discretion. Because a violation of these rules may be grounds for immediate termination of your right to use the Service or other remedial actions by Company, please carefully read and follow them:
- (a) Provide Accurate Information. You agree to provide true, accurate, current and complete information about yourself as requested in the Service registration forms (the "Registration Data"). If you choose to use language (i.e. a user name) that, in Company's sole discretion, is obscene, indecent, offensive, or abusive or that might otherwise be objectionable or inappropriate, we reserve the right without prior notice to you to delete or change the offending language.
- (b) Obey the Law. You agree not to use the Service for any illegal purposes or for the transmission of material that infringes the copyright (e.g., rights of an owner or authorized user of material) or other intellectual property rights of others.
- (c) Permitted Use of Content. The content included in the Service, including all Web and WAP site design, text, graphics, photos, audio, video, the selection and arrangement thereof, and all software that are part of the Service (collectively, the "Content") is owned or licensed by Company and/or its licensors. All Content is made available to you for your personal, non-commercial use and may be viewed or accessed on a computer or wireless device only for such use. The Content is protected by copyrights, trademarks, service marks, patents and other proprietary rights, legal and otherwise. Publication, sale, redistribution in any form or medium, as well as modification of or use of the Content except as expressly permitted by Company in writing is strictly prohibited. Company hereby grants you a limited, revocable, nonsublicensable license to access and display the Content (excluding any software code) solely for your personal, non-commercial use in connection with viewing and using the Service. Except as provided in this Agreement or as explicitly allowed on the Service, you may not copy, download, stream capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell or otherwise use any Content appearing on or through the Service.
- (d) Restrictions on Use of Content. Except as explicitly and expressly permitted by the Company, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the Content. This prohibition applies regardless of whether the derivative works or materials are sold, bartered or given away. You may not either directly or through the use of any device, software, internet site, web-based service or other means remove, later, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Content unless authorized by Company. You may not build a business utilizing the Content, whether or not for profit.
- (e) Limits on Use of the Service. You agree to not engage in any of the following: (i) use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, data scrape, copy or transfer any part of the Service or the Registration Data or other data of any User (whether individually or in the aggregate); (ii) probe, scan or test the vulnerability of the Service, or breach the security or authentication measures on the Service; (iii) reverse look-up, trace or seek to trace any information on any other User of the Service, including, without limitation, any Company account not owned by you to its source, or exploit the Service in any way where the purpose is to reveal any information, including, without limitation, personal identification or information other than your own information as provided for the Service; (iv) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service; (v) use any device, software or routine to interfere or attempt to interfere with the proper working or authorized uses of the Service or with any other person's use of the Service; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any message transmittal you send to the Service; and (vii) impersonate any other individual or entity or misrepresent your identity or your affiliation with another individual or entity.
- (f) Downloads; Streaming. Any material or software downloaded or streamed through or for the use of the Service is done at your own discretion and risk, and Company will not be responsible in any way for any damage to your computer system or wireless device, or for any loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you from the Service or our third party service providers will create any warranty not expressly stated. Software downloaded through or for the use of the Service will be subject to your prior acceptance of the terms of any end-user agreements or other terms and conditions required for use of such software. Software available in connection with the Service is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws.
- (g) Account Access. You agree that Company representatives will have access to your account and records as necessary to investigate complaints and to ensure that Company is able to provide high-quality services that are responsive to Users' needs.
- (h) Notice to Parents or Guardians. The Service does make available Content that may be watched by children under eighteen (18) years of age. Please be aware that certain items of Content may present, describe or portray material that is of a sensitive nature and minors may watch content only with the involvement of a parent or legal guardian. Company does not seek to and will not intentionally collect information from anyone under eighteen (18) years of age on the Service. Please be aware that certain areas on the Service contain mature content and there may be posted specific age restrictions to access and view such areas. You may be exposed to Content on the Service that you find offensive, indecent or objectionable. You assume all risk associated with accessing and or using the Service. Parents and legal guardians should supervise their children's use of the Service and communicate regarding appropriate or clinical materials for use and viewing by their children. Note to parents: If you have any concerns about the Service, please contact us at email@example.com.
- 4. Other Terms
- (a) Disclaimer of Warranties. You understand and expressly agree that:
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, THE "COMPANY PARTIES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY PARTIES MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, (V) THAT YOUR MESSAGES, DATA OR INFORMATION, IN WHATEVER FORM OR MEDIUM, WILL NOT BE LOST, AND (VI) ANY ERRORS WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR WIRELESS DEVICE OR FOR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANY COMPANY PARTY, OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE USER AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH JURISDICTIONS, LIABILITY OF THE COMPANY PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. TO THE EXTENT ANY PORTION OF THIS DISCLAIMER OF WARRANTIES IS INCONSISTENT WITH ANY OTHER PORTION OF THIS AGREEMENT, THIS DISCLAIMER OF WARRANTIES WILL CONTROL.
- (b) Limitation of Liability. You understand and expressly agree that:
THE COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, ANY COMPANY PARTY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS ANY WAY CONNECTED TO YOUR USE OF THE SERVICES, LIABILITY OF THE COMPANY PARTIES SHALL IN NO EVENT EXCEED THE GREATER OF (I) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO ANY SERVICE OR FEATURE OF THE SERVICES PAID IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST COMPANY, OR (II) US$100.00.
- (c) Indemnification. You agree to protect and fully compensate the Company Parties from any and all claims, liability, damages, expenses and costs (including, without limitation, outside attorneys' fees) arising from your use of the Service, or violation of this Agreement by you or any other user of your account (whether or not authorized by you).
- (d) Copyright Infringement. If you believe that content you own has been used on the Service in a way that violates your copyright or other intellectual property rights, please provide Company's Copyright Agent with the following information:
- (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;
- (iii) a description of where the material that you claim is infringing is located on the site;
- (iv) your address, telephone number, and email address;
- (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- (vi) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Company's Designated Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
202 34th Street
Manhattan Beach, California 90266
(f) Notices. Company may give you notice of certain events from time to time as required by state or federal law or as otherwise necessary. You hereby acknowledge and consent that such notices will be effective upon, at Company's election, Company's posting them on the Service or delivering them to you through email if you have provided Company with your accurate email address. Direct notices to Company as follows:
202 34th Street
Manhattan Beach, California 90266
- (g) Mobile Phone/Tablet Safety. Company urges you to never use your mobile phone, tablet or other device capable of accessing the Internet to access or use the Service while operating a car or other motorized vehicle or in any other situation where accessing or using the Service is unsafe, and you expressly agree, as a condition of your use of the Service, that you will not do so. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INJURY, DIRECT OR INDIRECT DAMAGES OR ANY OTHER LOSS THAT YOU MAY SUFFER OR INCUR AS A RESULT OF USING THE SERVICE WHILE OPERATING A CAR OR OTHER MOTORIZED VEHICLE OR IN ANY OTHER SITUATION WHERE ACCESSING THE SERVICE IS UNSAFE TO YOU OR ANY THIRD PARTY.
- (a) Disclaimer of Warranties. You understand and expressly agree that:
Notice to California Residents
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of this Site is Swash & Buckler, LLC located at Manhattan Beach, California, (310) 728-5102. To file a complaint regarding the Site or to receive further information regarding use of the Site send a letter to the Company at the above address. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.