Swink, Inc. - Terms of Use

  1. Introduction

    Welcome to the Swink, Inc. Terms of Use page. Below are the terms by which you may use the website and online service of Swink, Inc. ("Swink" "we," or "us"). Please read these Terms of Use carefully before using our website or online Service (as defined below).

  2. Terms of Use Agreement

    By accessing or using the Swink website or any products, software, data feeds or services provided through or in connection with the Swink website or service, including any Swink applications ("Service"), you signify that you have read, understood, and agree to be bound by (a) this Terms of Use Agreement ("Agreement") and (b) Swink’s Privacy Policy and incorporated by reference herein, whether or not you are a registered user of our Service. If you do not agree to this Agreement or any future Terms of Use Agreement, you may not use or access the Service. This Agreement applies to all visitors, users, and others who access the Service, including users who also contribute Content to the Service ("Users"). Content will include, but is not limited to, any text, software, scripts, graphics, photos, drawings, characterizations, sounds, music (including lyrics), videos, audiovisual combinations, interactive features, your and/or other persons' names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials you may view on, access through, or contribute to the Service. Nothing in this Agreement will be deemed to provide any benefits or rights to any third party.

  3. Account Registration & Passwords

    To use the Swink Service, you may be required to register with Swink. Registration will allow you to create a member account but it is optional to view User Content via the Service. If you choose not to register, you may not be able to use all of the services offered by Swink. Your account will give you access to the current services and functionality that we maintain as well as new services that we may add from time to time at our sole discretion. As part of your registration, you will be asked to provide an account user name and password as well as certain additional information. If you decide to register, you agree to provide true, accurate and complete information about yourself. You should keep your password secret and secure. You agree that you are solely liable and legally responsible for all actions taken via your account or password, whether or not made with your knowledge or authority. If you suspect that someone may have obtained your password or is using your account without authorization, you should change your password. You must notify Swink immediately of any breach of security or unauthorized use of your account. Swink will not be liable for your losses caused by any unauthorized use of your account. You may be held liable for the losses of Swink or others due to such unauthorized use.  By providing Swink your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail, except as otherwise required by mandatory provisions of applicable law that cannot be contractually waived, altered or minimized. We may also use your email address to send you other messages, such as newsletters or changes to features of the Service. If you do not want to receive additional such email messages, you may opt out by taking the unsubscribe steps outlined in the email itself. Opting out may prevent you from receiving email messages regarding updates or improvements. 

  4. Privacy

    We describe our current practices related to personally identifiable information collected through the Service in our Privacy Policy. By using the Service, you are consenting to have your personal data transferred to and processed outside of the United States.

  5. Security

    We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

  6. Eligibility

    This Service is intended solely for Users who are thirteen (13) years of age or older, and any registration, use or access to the Service by anyone under thirteen (13) is unauthorized, unlicensed, and in violation of this Agreement. Swink may terminate your account, delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service) for any reason, at any time in its sole discretion, with or without notice, including, without limitation, if it believes that you are under thirteen (13). If you are under eighteen (18) years of age you may use the Service only if you either are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.

  7. Permitted Use of Service

    Swink grants you permission to use the Service only as set forth in and subject to the terms of this Agreement. Once you have registered with Swink and set up a user account, subject to the terms of this Agreement, Swink grants you permission to (a) upload an original video, (b) show your videos through the Swink available technology, (c) download videos from the Swink Service using available Swink technology and (d) use the Swink Service as expressly authorized in writing by Swink.

  8. Prohibited Use of Service

    You will comply with all applicable laws and regulations and refrain from violating any rights of Swink or any third-party in connection with this Agreement. Without limiting the generality of the foregoing:

    • (a) you will not copy, distribute, or disclose any part of the Service in any medium;
    • (b) you will not violate, interfere with, damage, or compromise the integrity or security of the Service, decipher any transmissions to or from the servers running the Service, or remove any proprietary notices from the Service or copies thereof;
    • (c) you will not access any Content through any technology or means other than through the available technology of the Service itself or other such means as specifically authorized by Swink;
    • (d) you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose;
    • (e) you will not decompile, disassemble, reverse engineer, or hack the Service and/or data transmitted, processed or stored by Swink or by other users, except to the extent expressly permitted by mandatory provisions of applicable law that cannot be contractually waived, altered or minimized, but then only with thirty (30) days prior written notice to Swink;
    • (f) you will not sell, sublicense, assign, rent, lease, act as a service bureau or grant rights in the Service to any other person for any reason;
    • (g) you will not use the Service for the sale of advertising, sponsorships or promotions;
    • (h) you will not use the Service to, or in any way that would, violate any applicable law or regulation, any contract, or any other third-party rights;
    • (i) you will not upload invalid data, viruses, worms, or other software agents through the Service;
    • (j) you will not impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity;
    • (k) you will not attempt to do anything or induce or enable others to do or attempt to do anything prohibited by this paragraph;
    • (l) you will otherwise comply with the terms and conditions of this Agreement;
    • (m) you will not use the service unless you are at least eighteen (18) years of age or are otherwise eligible to use the Service as set forth in Section 6 above; and
    • (n) you will never use another member's account without permission.

    You agree not to use or launch any automated system, including without limitation, "harvesting," "bots," "robots," "spiders," "scrapers," "offline readers," etc., that accesses the Service in a manner that sends more request messages to the Swink servers than a human can reasonably produce in the same period of time by using a conventional online web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Service nor to use the communication systems provided by the Service for any commercial solicitation purposes. You agree to not tamper with any data sent or received by Swink's services. Notwithstanding the foregoing, Swink grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Swink reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their User Content.

  9. Termination or Suspension of the Service or Your Access to the Service

    Swink may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if you violate any provision of the Agreement or take any action that imposes, or may impose at Swink's sole discretion, an unreasonable or disproportionately large load on our infrastructure . Swink reserves the right to modify, discontinue, or suspend its operation of the Service, or any part thereof, temporarily or permanently, at any time, without notice to you. Upon termination or suspension of your access for any reason, you continue to be bound by this Agreement.

  10. User Content

    Some areas of the Service allow Users to post Content (such as feedback, comments, questions, images, videos, and other information) ("User Content"). You are solely responsible for the User Content that you submit, post, upload, embed, publish, link, display, communicate or distribute to or otherwise make available (defined herein as, "post") on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.  You agree not to post User Content that:

    • (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
    • (b) may create a risk of any other loss or damage to any person or property;
    • (c) may constitute or contribute to a crime or tort;
    • (d) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, obscene, hateful, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable;
    • (e) contains any information or content that is illegal;
    • (f) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
    • (g) contains any information or content that you know is not correct and current;
    • (h) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Service; or
    • (i) is an unsolicited commercial communication not permitted by law.

    You agree that any User Content, and Swink's use thereof as contemplated by this Agreement, that you post does not and will not violate or infringe on any third-party rights of any kind, including, without limitation, any Intellectual Property Rights (as defined below), privacy rights or rights of publicity. For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.  You will be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent and warrant that you own or have the necessary licenses, rights, consents and permissions to publish your User Content and you license to Swink all Intellectual Property Rights in and to such User Content for publication on the Service pursuant to this Agreement. In addition, you affirm, represent and warrant, that you have the written consent of each and every identifiable natural person in the User Content to use such person's name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use. Swink reserves the right, but is not obligated, to reject and/or remove any User Content that Swink believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer's Guild of America, or any other rights organization.  Swink takes no responsibility and assumes no liability for any User Content that you or any other Users or third parties post or send over the Service. Swink does not guarantee any confidentiality with respect to any User Content you post. You acknowledge that User Content posted through the Service is placed into a public forum and that you have no expectation of privacy with any such postings. You make all such disclosures at your own risk. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. Swink is not responsible for any public display or misuse of your User Content. Swink does not endorse any User Content or any opinion, recommendations or advice expressed within any User Content. You understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree that Swink will not be liable for any damages you allege to incur as a result of such content. Pursuant to 47 U.S.C. Section 230 (d) as amended, Swink hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. The following vendors provide such protections: Net Nanny (http://www.netnanny.com); WebWatcher (http://webwatcherkids.com); Sentry Parental Controls (http://sentryparentalcontrols.com). Swink does not endorse any products or services available through the referenced vendors.  You are solely responsible for your interactions with other Swink Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users.  If you post User Content to a third-party website using the Service, you should make sure to read the terms of use and privacy policy applicable to such third party site and understand that the third-party website's terms of use and privacy policy may be less protective of you than this Agreement and/or Swink's privacy policy.

  11. License Grant

    Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-sublicenseable, limited, personal license to use the Service within the United States, for as long as you are a User. Swink reserves all rights in the Service and the Swink Content (as defined below) that are not expressly granted to you under this Agreement. Swink may terminate this license at any time for any reason or no reason without your consent or notice to you.

  12. Swink's Proprietary Rights

    The Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the "Swink Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Swink and its licensors. Except as explicitly provided herein, nothing in this Agreement will be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Swink Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.  You retain all of your ownership rights in your Content. However, by submitting your User Content to Swink, you hereby grant Swink a worldwide, non-exclusive, royalty-free, sublicenseable and transferable (in whole or in part) license to use, reproduce, distribute, prepare derivative works of, display, and perform any of your User Content in connection with the Service and Swink's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement. The above licenses granted by you in the video User Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that Swink may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Swink under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to you. You acknowledge that, by acceptance of your submission, Swink does not waive any rights to use similar or related ideas previously known to Swink, or developed by its employees, or obtained from sources other than you.

  13. Procedure for Making Claims of Copyright Infringement

    If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Swink's copyright agent and provide the following information in writing:

    • (a) An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
    • (b) Identification of the copyrighted work that you claim has been infringed;
    • (c) Identification of the material that is claimed to be infringing and where it is located on the Service;
    • (d) Information reasonably sufficient to permit Swink to contact you, such as your address, telephone number, and e-mail address;
    • (e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
    • (f) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

    The above information must be submitted to the following Copyright Agent: Name: Dan Policy Attn: Copyright Notice Swink, Inc. 1000 North Point Street, #707 San Francisco, CA 94109 Email:  dpolicy@swink.tv Under United States federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys' fees.

  14. Counter-Notification

    If the alleged infringer believes that a notice of copyright infringement has been wrongly filed, the alleged infringer may file a counter-notification with Swink's Copyright Agent. To be effective, a counter-notification must be a written communication provided to Swink's Copyright Agent that includes the following information:

    • (a) An electronic or physical signature of the alleged infringer;
    • (b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
    • (c) A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
    • (d) The alleged infringer's name, address, and telephone number, and a statement that the alleged infringer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the alleged infringer's address is outside of the United States, for any judicial district in which Swink may be found, and that the alleged infringer will accept service of process from the person who provided notification or an agent of such person.

    Upon receipt of a counter-notification containing the information as outlined in (a) through (d) above:  (a) Swink may promptly provide you with a copy of the counter-notification; Swink may inform you that it will replace the removed material or cease disabling access to it within ten (10) business days; and (b) Swink may replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the counter-notification, provided Swink's Copyright Agent has not received notice from you that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity relating to the material on Swink's network or system. Please note that this procedure is exclusively for notifying Swink and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Swink's rights and obligations under the applicable copyright law, including but not limited to the Digital Millennium Copyright Act of 1988 ("DMCA"), and 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under any applicable laws.  In accordance with the DMCA and other applicable law, Swink has adopted a policy of terminating, in appropriate circumstances and at Swink's sole discretion, members who are deemed to be repeat infringers. Swink may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe on any intellectual property rights of others, whether or not there is any repeat infringement.

  15. Third-party websites, advertisers or services

    Swink may contain links to and may allow you to retrieve data from third-party websites, advertisers, or services that are not owned or controlled by Swink. Swink has no control over, and assumes no responsibility for, the content (whether or not such content infringes the intellectual property rights of a third party), privacy policies, or practices of any third party websites or services. If you access a third-party website from Swink, you do so at your own risk, and you understand that this Agreement and Swink's Privacy Policy do not apply to your use of such sites. You expressly relieve Swink from any and all liability arising from your use of any third-party website or services or third-party owned content. Additionally, your dealings with or participation in promotions of advertisers found on Swink, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Swink will not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.  We encourage you to be aware of when you leave the Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit.

  16. No warranty

    THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SWINK AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. YOU HEREBY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION). SWINK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SWINK SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SWINK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

  17. Limitation of Liability

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SWINK, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL SWINK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWINK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (G) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT WILL SWINK, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF THE AMOUNT (IF ANY) YOU PAID TO SWINK HEREUNDER AND $100.  THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SWINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.  THOSE WHO ACCESS OR USE THE SERVICE DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS. The Service is controlled and offered by Swink from its offices in the United States of America. Swink makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

  18. Indemnity

    To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Swink and its subsidiaries, agents, managers, licensors, licensees, representatives and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:

    • (a) your use of and access to the Service, including any data or work transmitted or received by you;
    • (b) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above;
    • (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;
    • (d) your violation of any law, rule or regulation of the United States or any other country;
    • (e) any claim or damages that arise as a result of any of your User Content or any that are submitted via your account; or
    • (f) any other party's access and use of the Service with your unique username, password or other appropriate security code. You agree to use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

  19. General
    • (a) Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Swink without restriction.
    • (b) Amendments. We reserve the right, in our sole discretion, to amend, modify or revise this Agreement at any time and without advance notice and you agree to be bound by such amendments, modifications or revisions. It is your responsibility to check this Agreement for any changes, amendments, modifications or revisions. Your continued use of the Service after any such changes constitutes your acceptance of the new Terms of Use.
    • (c) Governing Law. You agree that the Service will be deemed a passive one that does not give rise to personal jurisdiction over Swink, either specific or general, in jurisdictions other than the state of California, United States of America. This Agreement will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Swink that arises in whole or in part from the Service will be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California. Those who choose to access the Swink Service do so at their own initiative and are responsible for compliance with all applicable laws including any applicable local laws.
    • (d) Arbitration. For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration will initiate the arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
    • (e) Notification Procedures. Swink may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by Swink in our sole discretion. Swink reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.  Please note that, at all times, you are responsible for updating your personal information to provide us your current e-mail address. Please note that, at all times, you are responsible for updating your personal information to provide us your current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any other reason is not capable of delivering to you notice as described above, our dispatch of the e-mail containing any such notice will nonetheless constitute effective notice.
    • (f) Entire Agreement/Severability. This Agreement, together with any other legal notices and agreements published by Swink via the Service, will constitute the entire agreement between you and Swink concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. 
    • (g) No waiver. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Swink's failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. 

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

    Please contact us info@swink.tv with any questions regarding this Agreement.