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.
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.
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.
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.
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:
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.
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.
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:
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.
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.
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:
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: email@example.com 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.
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:
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.
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.
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.
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:
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.