Date Last Revised: August 19th, 2014
This agreement (the "Agreement") sets forth the terms and conditions that govern your access and use of the website located at www.swellbox.com, including the information, material and other content ("Site Content") and tools, software, features and functionality ("Site Features") thereon that enable you to consolidate, organize, manage and track healthcare-related information and expenses (the "Service," together with the Site Content and Site Features as provided by Swellbox and its providers, collectively, the "Site").
If you wish to become an Account Holder and use the Service, you must read this Agreement and indicate your acceptance during the registration process for the Service.
You may not use the Site and you may not accept this Agreement if you are not of a legal age to form a binding contract with Swellbox.
The Service is an information management service that assists Account Holders in consolidating, organizing, managing and tracking healthcare-related information and expenses on the Site.
NEITHER SWELLBOX NOR THE SITE INCLUDING THE SERVICE AND SITE CONTENT PROVIDE OR SHOULD BE INTEREPRETED TO PROVIDE LEGAL, HEALTH OR FINANCIAL ADVICE. SWELLBOX IS NOT A HEALTHCARE, INSURANCE OR FINANCIAL PLANNER, PROVIDER OR ADVISOR, AND THE SITE DOES NOT CONTAIN AND SHOULD NOT BE USED FOR LEGAL, HEALTH OR FINANCIAL ADVICE. THE SITE IS NOT INTENDED TO BE AND SHOULD NOT BE USED AS A SUBSTITUE FOR PROFESSIONAL LEGAL, HEALTH OR PROFESSIONAL ADIVISORS AND THEIR ADVICE.
The Site including the Service is intended only to assist you in consolidating, organizing, managing and tracking your healthcare-related information and expenses. Your personal healthcare and financial situation is unique, and any information obtained through or based upon the Site including the Service may not be appropriate for your situation. Accordingly, before making any healthcare-related decisions or implementing any healthcare or insurance strategy, you should obtain additional information and advice from professional advisers. Do not rely on the Site including the Service as a substitute for such advice and advisers.
The Site including the Service is intended solely for use by persons who are 18 or older. Any access to or use of the Site including the Service by anyone under 18 is expressly prohibited. By accessing or using the Site including the Service your represent and warrant that you are 18 or older.
If you register as an Account Holder of the Service, you grant Swellbox the right to access, retrieve, reorganize copy and store via the Service healthcare information sources and accounts you identify from time to time, and all data, images and other content found there that concerns you and other persons covered by your healthcare providers including, for example, family members and dependents (collectively "Healthcare Information"). This Healthcare Information is maintained by third-parties with which you have relationships or receive goods or services, including your health plan sponsor, your health plan, pharmacy benefits manager, your insurance companies, the providers of your health spending account, health reimbursement account, flexible spending account and other similar accounts, physicians, hospitals, laboratories and other healthcare providers and related websites (collectively, "Healthcare Sources"). When you use the Service, you will identify the Healthcare Sources from which you would like Healthcare Information retrieved. In order for the Service to do so, you will be prompted to provide your login identification, including your user names and passwords, for such Healthcare Sources (the "Access Information"). By providing Swellbox with the Access Information, you understand and agree that Swellbox will, and you hereby expressly consent, permit and authorize Swellbox as your authorized agent to, access, retrieve (including accepting on your behalf updated terms of service, account detail confirmations and the like on an "as is" basis that would otherwise prevent Swellbox from retrieving your Healthcare Information), reorganize, copy and store your Healthcare Information from the Healthcare Sources, so that Swellbox may make the Healthcare Information available and viewable by us and you, and your authorized users through the Service. Your authorized users are those individuals you provide your Account log-in information, including your username and password information, to so that they can use the Service on your behalf, and possibly include, for example, a physician, or adult family member. Depending on the Healthcare Source for which you provide Swellbox Access Information, Healthcare Information may or may not be retrievable by and viewable on the Service.
YOUR RELATIONSHIP WITH EACH HEALTHCARE SOURCE MAY BE GOVERNED BY AGREEMENTS YOU HAVE WITH SUCH HEALTHCARE SOURCES, AND ANY INFORMATION PROVIDED TO OR HELD BY SUCH HEALTHCARE SOURCE, INCLUDING ACCESS, STORAGE, RETRIEVAL AND TRANSFER THEREOF, IS SUBJECT TO SUCH AGREEMENTS. SWELLBOX DOES NOT CLAIM TO REVIEW SUCH AGREEMENTS FOR ANY PURPOSE INCLUDING TO DETERMINE YOUR RIGHTS THEREUNDER, INCLUDING WHETHER THE AGREEMENTS PERMIT YOU TO PROVIDE THE ACCESS INFORMATION, OR PERMIT YOU TO ALLOW THE SERVICE TO ACCESS YOUR HEALTHCARE INFORMATION AND COPY IT TO THE SERVICE. YOU REPRESENT THAT YOU HAVE REVIEWED SUCH AGREEMENTS AND YOU REPRESENT THAT SUCH AGREEMENTS DO NOT PROHIBIT YOU FROM PROVIDING SWELLBOX WITH ACCESS TO SUCH INFORMATION ON YOUR BEHALF. WE ARE NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY IN CONNECTION WITH ANY CLAIM, DAMAGES OR LOSS RELATED TO SUCH AN AGREEMENT WITH A HEALTHCARE SOURCE, INCLUDING THE BREACH THEREOF, OR THE HEALTHCARE INFORMATION AND OTHER SUBMITTED MATERIAL, INCLUDING YOUR PROVISION OF THE ACCESS INFORMATION, OR YOUR AUTHORIZATION OF US AND THE SERVICE TO ACCESS, RETRIEVE OR OTHERWISE USE YOUR HEALTHCARE INFORMATION FROM HEALTHCARE SOURCES. ALL RISK OF LOSS OF SUBMITTED MATERIAL INCLUDING HEALTHCARE INFORMATION, OR RISK OF LOSS OF ACCESS TO OR USE OF HEALTHCARE SOURCES AS A RESULT OF YOUR ELECTION TO USE THE SERVICE IN CONNECTION WITH THE HEALTHCARE INFORMATION AND HEALTHCARE SOURCES LIES ENTIRELY WITH YOU.
SWELLBOX MAKES NO EFFORT TO REVIEW HEALTHCARE INFORMATION FOR ANY PURPOSE, INCLUDING AS TO ITS COMPLETENESS, ACCURACY, LEGALITY OR NON-INFRINGEMENT. SWELLBOX IS NOT RESPONSIBLE FOR THE PRODUCTS AND SERVICES OFFERED BY OR ON THIRD-PARTY SITES INCLUDING THROUGH THE THIRD PARTY LINKS.
If the Healthcare Source becomes unavailable or terminates Swellbox's access to the corresponding Healthcare Information or Healthcare Source, any Healthcare Information from that Healthcare Source will no longer be available or viewable via the Service. You have the ability to disable the connection between the Service and any Healthcare Source at any time by deleting that Healthcare Source from your Account.
Swellbox cannot always foresee or anticipate technical or other problems which may result in the loss of, or the failure to access, retain and retrieve, Healthcare Information, personalization settings or other service interruptions. Swellbox does not assume responsibility for the timeliness, accuracy, completeness, deletion, non-delivery or failure to store any Healthcare Information, or other information, communications or settings. For instance, when displayed through the Service, Healthcare Information is only as current as of any date and time when such information was obtained from the Healthcare Source. Healthcare Information may be more up-to-date when obtained directly from the relevant Healthcare Source. The Service periodically and automatically refreshes your Healthcare Information from your Healthcare Source. You can also refresh your Healthcare Information through the Service, in the manner prescribed in the associated instructions on the Service.
Your access and use of the Site and Service may be interrupted from time to time for any or no reason, including the malfunction of equipment, periodic updating, maintenance or repair of the Site, or other actions that Swellbox, in its sole discretion, may elect to take, with or without notice. Swellbox may terminate any feature of the Service, in its sole discretion and with or without notice.
The Site may provide links to third party sites, services and products ("Third Party Links"). Swellbox does not endorse, warrant or guarantee the content, products or services available through Third Party Links and Swellbox is not responsible or liable for the activities or policies of websites, or services or products available on such sites or through such links. You acknowledge sole responsibility for and assume all risk arising from your use of any such Third Party Links, including websites, resources, products or services available through such links. You understand and acknowledge that the Service is not sponsored or endorsed by any third parties that may be accessible through the Site.
In order to access certain features of the Site and Service, you must register to create an account ("Account") and become a "Account Holder." During the registration process, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete.
By providing us with your e-mail address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate.
Your right to access and use the Site including the Service is personal to you and is not transferable by you to any other person or entity other than your authorized users as set forth herein. You are only entitled to access and use the Site including the Service for lawful purposes.
In order for the Service to function effectively, you must keep your Access Information up to date and accurate. If you do not do this, the effectiveness of the Service to you will be affected.
From time to time, Swellbox may include new and/or updated pre-release features ("Pre-Release Features") for your use and which permit you to provide feedback. You understand and agree that your use of Pre-Release Features is voluntary and Swellbox is not obligated to provide you with any Pre-Release Features. Furthermore, if you decide to use the Pre-Release Features you agree to abide by any rules or restrictions Swellbox may place on them. You understand that once you use the Pre-Release Features, you may be unable to revert back to the earlier version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Pre-Release Feature back to the earlier version. The Pre-Release Features are provided on an "as is" basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from any connected device. You acknowledge and agree that all use of the Pre-Release Feature is at your sole risk.
Swellbox may from time to time provide: (1) voluntary electronic alerts related to Healthcare Information and/or Healthcare Sources ("Voluntary Alerts"); and (2) automatic electronic alerts following certain changes made online to your Swellbox account, such as a change in your Access Information ("Automatic Alerts," and collectively with Voluntary Alerts, "Alerts").
Voluntary Alerts may be turned on by default as part of the Service. They may then be customized, deactivated or reactivated by you. Each Voluntary Alert has different options available, and you may be asked to select from among these options upon activation of your Voluntary Alert service.
Swellbox may add new Alerts from time to time, or cease to provide certain Alerts at any time in its sole discretion.
Alerts will be sent to the email address you provided as your primary email address for the Site. You can also choose to have Alerts sent to a mobile device that accepts text messages. If your email address or your mobile device's email address changes, you are responsible for informing us of that change. Changes to your email address or mobile number will apply to all of your Alerts.
Because Alerts are not encrypted, we will never include your passcode. However, Alerts may include your username and, depending upon which Voluntary Alerts you select, some information about your Healthcare Information and Healthcare Sources. Anyone with access to your email will be able to view the content of these Alerts. At any time you may disable future Voluntary Alerts.
By submitting Access Information, and any other information, materials and content, including all retrieved or collected Healthcare Information (collectively, "Submitted Material"), to Swellbox through the Service, you are granting Swellbox the right to use the Submitted Material for the purpose of providing the Service. You represent that you have reviewed applicable user agreements and you represent that such agreements do not prohibit you from providing Swellbox with access to such information on your behalf. Swellbox may use and store the Submitted Material including the Healthcare Information, but only to provide the Service to you and your authorized users. By submitting Submitted Material to Swellbox, you represent that you are entitled to submit it to Swellbox for use for this purpose, without any obligation by Swellbox to pay any fees or other limitations.
By using the Service, you expressly authorize Swellbox to access and copy, on your behalf and as your agent, your Healthcare Information from the Healthcare Sources. When you link the Healthcare Source feature of the Service, and provide the Access Information for a Healthcare Source, Swellbox will submit the Access Information provided by you to log into the Healthcare Source as your authorized agent and on your behalf. You hereby authorize and permit Swellbox to use and store Submitted Material provided by you to the Service (such as Access Information) to accomplish the foregoing and to configure the Service so that it is compatible with the Healthcare Sources for which you submit your information. For purposes of this Agreement, and solely to provide the Service, you appoint Swellbox as your authorized agent, to access the Healthcare Sources, and to copy, retrieve, view and use your Healthcare Information, with full power and authority to do and perform each action necessary in connection with such activities, as you could do yourself.
YOU ACKNOWLEDGE AND AGREE THAT WHEN SWELLBOX IS ACCESSING AND RETRIEVING HEALTHCARE INFORMATION FROM HEALTHCARE SOURCES, SWELLBOX IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF ANY THIRD PARTY. YOU FURTHER ACKNOWLEDGE THAT THERE IS NO FIDUCIARY RELATIONSHIP BETWEEN YOU AND SWELLBOX.
The Site, including the Service, and (except as otherwise provided in this Agreement) the Site Content and Site Features, including the "look and feel" thereof, and all text, graphics, images, information, logos, marks, photographs, software, content or other materials available on the Site including the Service, are protected under copyright, trademark and other laws in the United States and other jurisdictions. All right, title and interest in and to the Site, including the Service, Site Content and Site Features, including all associated intellectual property rights, are exclusively owned by Swellbox and its licensors.
Subject to your and your authorized users' compliance with this Agreement, Swellbox grants you a limited, non-exclusive, non-transferable license and right to: (1) access, view and use the Site including the Service; and (2) access, view, download or print Site Content for your personal, internal and non-commercial use only. You may also authorize your authorized users to do the foregoing solely for you and on your behalf. You will not nor permit your authorized users to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, including the Service, Site Content and Site Features, in whole or in part, for any purpose except as expressly permitted in this Agreement. Other than as expressly granted herein, no rights are granted to you or your authorized users by implication or otherwise with respect to the Site, including the Service, Site Content or Site Features, any intellectual property rights therein, or any other intellectual property rights owned or controlled by Swellbox or its licensors.
You agree that you will not, nor permit your authorized users to:
You acknowledge that Swellbox has no obligation to monitor your access to or use of the Site, or to review or edit any of your Healthcare Information, but has the right to do so, including for the purposes of operating the Site and the Service, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
Swellbox may allow you to upload, post, publish, submit, transmit or otherwise make available text, information or other materials on certain locations of the Site ("Your Content"). Your Content does not include content that is Submitted Material including Healthcare Information.
You are solely responsible for all Your Content. By making Your Content available on or through the Site you agree, represent and warrant that:
Swellbox reserves the right, at any time and without prior notice, to remove or disable access to Your Content that Swellbox, in its sole discretion, considers to be in violation of this Agreement or otherwise offensive or harmful to the Site.
You may elect to provide feedback, comments, ideas and suggestions for improvements to the Site including the Service, or in connection with Pre-Release Features ("Feedback"), by emailing such to email@example.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Swellbox and you hereby irrevocably assign, and agree to irrevocably assign, to Swellbox all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trademark, trade secret, moral rights or other intellectual property rights therein. At Swellbox's request and expense, you will execute documents and take such further acts as Swellbox may reasonably request to assist Swellbox to acquire, record, perfect and maintain its rights and protections for the Feedback. You agree that Swellbox may use your feedback, suggestions, or ideas in any way, including in future modifications of the Site, other products or services, and advertising or marketing materials.
THE SITE, INCLUDING THE SERVICE, SITE CONTENT AND SITE FEATURES, AND ALL OTHER SERVICES AND PRODUCTS ASSOCIATED WITH THE SITE OR PROVIDED THROUGH THE SITE INCLUDING VIA THIRD PARTY LINKS, AND WHETHER OR NOT SPONSORED, ARE PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS. SWELLBOX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SITE INCLUDING THE SERVICE, SITE CONTENT AND SITE FEATURES, OR SUCH OTHER SERVICES AND PRODUCTS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE INCLUDING THE SERVICE, SITE CONTENT AND SITE FEATURES, AND SUCH OTHER SERVICES AND PRODUCTS IS AT YOUR SOLE RISK.
WITHOUT LIMITING THE FOREGOING, SWELLBOX EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SWELLBOX MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, THAT THE SITE, INCLUDING THE SERVICE, SITE CONTENT AND SITE FEATURES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS; REGARDING THE QUALITY, SECURITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY SITE CONTENT, INFORMATION, PRODUCT OR SERVICE OBTAINED THROUGH THE SITE; OR THAT THE SITE, INCLUDING THE SERVICE, SITE CONTENT AND SITE FEATURES, AND ANY OTHER INFORMATION, SERVICE OR PRODUCT THAT MAY BE AVAILABLE THROUGH THE SITE IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
ANY INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SWELLBOX OR THROUGH THE SITE, INCLUDING THE SERVICE, SITE CONTENT AND SITE FEATURES IS NOT INTENDED TO PROVIDE LEGAL, HEALTH OR FINANCIAL ADVICE AND NO SUCH INFORMATION WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU UNDERSTAND AND AGREE THAT ANY INFORMATION STORED ON OR ACCESSIBLE VIA THE SITE INCLUDING THE SERVICE IS STORED AND ACCESSIBLE AT YOUR OWN DISCRETION AND RISK AND THAT SWELLBOX IS NOT RESPONSIBLE FOR SUCH INFORMATION INCLUDING ANY LOSS OF OR DAMAGE TO SUCH INFORMATION INCLUDING THE HEALTHCARE INFORMATION, ACCESS INFORMATION, YOUR CONTENT OR SUBMITTED MATERIAL AND SWELLBOX EXPRESSLY DISCLAIMS ALL LIABILITY RELATED THERETO.
You understand and agree that any Alerts provided to you through the Site may be delayed or prevented by a variety of factors. Swellbox attempts to provide Alerts in a timely manner with accurate information. However, we do not guarantee the timeliness, delivery or accuracy of the content of Alerts. You agree that Swellbox shall not be liable, and Swellbox expressly disclaims liability, for Alerts, including for any delays, failure to deliver, or misdirected delivery of any Alert; for any errors in the content of an Alert; or for any actions taken or not taken by you or any third party in reliance on an Alert.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE INCLUDING THE SERVICE AND OTHER PARTS THEREOF REMAINS WITH YOU.
SWELLBOX OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR ANY PART THEREOF WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, LIQUIDATED, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE, THE SITE OR ANY PART THEREOF, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SWELLBOX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN, IF ANY, IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SWELLBOX'S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $100.00 (ONE HUNDRED UNITED STATES DOLLARS). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE, AND THE OTHER LIMITATIONS AND DISCLAIMERS HEREIN, ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SWELLBOX AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless Swellbox and its officers, directors, shareholders, and employees, from and against all claims, liabilities, damages, losses and expenses, including attorneys' fees, in whole or in part arising out of, or in any way connected or attributable to: (1) your access to or use of the Site, including the Service, Site Content or Site Features, or any breach of this Agreement by you; (2) Submitted Material, including Healthcare Information and the Access Information, and Your Content; and (3) Heathcare Sources, including your agreement with the Healthcare Source (or breach thereof), access by the Service of your Healthcare Sources, or the copying and retrieval of Healthcare Information from your Healthcare Sources.
This Agreement will continue to apply until terminated by either you or Swellbox as set out below. If you want to terminate your Agreement with Swellbox, you may do so by closing your Account by sending an email so indicating to firstname.lastname@example.org and discontinuing any further use of the Site. Your Account will be closed and your ability to log-in deactivated immediately.
Swellbox reserves the right to revoke your access to and use of the Site including the Service at any time, with or without cause or prior notice, including terminating, suspending and/or disabling your Account and terminating this Agreement: (1) if you have breached any provision of this Agreement (or have acted in a manner which shows that you do not intend to or are unable to comply with the provisions of this Agreement); or (2) if Swellbox, in its sole discretion, believes it is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful), or will be submitted to a claim by a third party as a result of provision of the Service to you.
UPON ANY TERMINATION OR CANCELLATION OF YOUR ACCOUNT, ANY INFORMATION THAT YOU ACCESS VIA THE SITE INCLUDING THE SERVICE WILL NO LONGER BE ACCESSIBLE BY YOU VIA THE SITE.
Swellbox may, at its sole discretion, without prior notice and for any or no reason: (1) modify this Agreement from time to time; or (2) modify, suspend, discontinue or terminate the Site, or parts thereof. If we modify this Agreement, we will post the modification on the Site or provide you with notice of the modification. The Agreement will also indicate the date it was last revised. By continuing to access or use the Site including the Service after we have posted the modification on the Site or provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, you should cease using the Site including the Service, and close your Account and terminate the Agreement as set forth above.
You agree that the laws of the United States of America and the laws of the State of New York, without regard to the principles of conflicts of laws, will govern your use of the Site including the Service, this Agreement and all matters relating to your access to and use of the Site, including all disputes between you and Swellbox. You irrevocably submit to the exclusive jurisdiction of, and venue in, the state and federal courts seated in New York County, New York, and the related appellate courts, in any related action, dispute or proceeding, except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case Swellbox may seek such relief in any court with jurisdiction over the parties. You understand and agree that money damages would not be an adequate remedy for any breach by you of this Agreement and that Swellbox shall be entitled to equitable relief, including preliminary and permanent injunctions and specific performance, as well as recovery of court costs, expenses and reasonable attorneys' fees, if you breach or threaten to breach this Agreement. Such remedies shall not be exclusive, shall be in addition to all other remedies available at law, equity or otherwise for your breach of this Agreement, and shall be available to Swellbox without a requirement that it post any bond or prove any actual damages. You understand that your assent to this provision is indispensable consideration to this Agreement, and that Swellbox is only able to offer the Site including the Service upon the terms set forth herein because of such assent.
You also acknowledge and understand that, with respect to any dispute with Swellbox, its officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Site including the Service or this Agreement: YOU ARE GIVING UP AND WAIVING YOUR RIGHT TO HAVE A TRIAL BY JURY; and YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
All trademarks, service marks, logos, trade names and any other proprietary designations of Swellbox used herein are trademarks or registered trademarks of Swellbox. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
You may not assign or transfer this Agreement, by operation of law or otherwise, without Swellbox's prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null and of no effect. Swellbox may assign license, delegate or transfer this Agreement, in its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to this Agreement, will be in writing and given: (i) by Swellbox via email (in each case to the address that you provide); or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that if Swellbox does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Swellbox has the benefit of under any applicable law), this will not be taken to be a formal waiver of Swellbox's rights and that those rights or remedies will still be available to Swellbox.
All covenants, agreements, representations and warranties made in this Agreement shall survive your acceptance of and the termination of this Agreement.
This Agreement represents the entire understanding and agreement between you and Swellbox regarding the subject matter of the Site, including the Service and Content, and supersedes all other previous agreements or understandings regarding this subject matter.
You represent and warrant that you have the unencumbered right to grant the rights granted herein and to enter this Agreement.
For purposes of this Agreement: (1) the singular includes the plural and the plural includes the singular; (2) "or" and "and" connotes any combination of all or any of the items listed; (3) any form of the word "include" shall be deemed to be followed by the words "without limitation"; (4) headings are merely for convenience and in no way modify, interpret or construe the intentions of the parties; and (5) whenever you are restricted from taking any action hereunder, you are also restricted from directly or indirectly authorizing, permitting, or cooperating with a third party or affiliate to take such action.
If you have any questions about this Agreement, please contact Swellbox at email@example.com.