QuickSite Terms of Service
Swarm Interactive, Inc.
TERMS OF SERVICE FOR QUICKSITES
IMPORTANT: PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES (AS DEFINED BELOW). BY EXECUTING AND SUBMITTING A CREDIT CARD BILLING AUTHORIZATION, OR BY ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES, AND DO NOT EXECUTE OR SUBMIT A CREDIT CARD BILLING AUTHORIZATION.
“Agreement” means these Terms of Service together with Swarm’s Privacy Statement as provided to you on the website, as amended from time to time by Swarm.
“Buyout” has the meaning set forth in Section 8.
“Content” means all information, data, text, software, music, sound, photographs, graphics, audio or video files, messages or other materials uploaded, posted or stored by you using the Services.
“Feedback” has the meaning set forth in Section 12.
“HIPAA” has the meaning set forth in Section 18.
“Registration Data” has the meaning set forth in Section 10.
“Renewal Term” has the meaning set forth in Section 7.
“Services” means the Swarm services to which you are granted access under this Agreement and via Quicksites website, including but not limited to website construction, web hosting, editing, access to Swarm Licensed Content, technology, site management tools, and promotion tools.
“Term” has the meaning set forth in Section 7.
“Third Party Products” has the meaning set forth in Section 17.
“Third Party Websites” has the meaning set forth in Section 17.
“TPDNV” has the meaning set forth in Section 15.
“TPESV” has the meaning set forth in Section 16.
“TPESV Dispute” has the meaning set forth in Section 16.
“Trial Period” means a short term period during which the Services are provided to you for evaluation, prior to entering into a longer term subscription.
“Swarm” means Swarm Interactive, Inc. and its successors and assigns.
“Swarm Licensed Content” means all information, data, text, software, music, sound, photographs, graphics, audio or video files, messages or other materials uploaded, owned or licensed by Swarm, posted or stored by Swarm, and furnished to you under the terms of this Agreement.
“we” “our” or “us” means Swarm Interactive, Inc. and its successors and assigns.
“you” or “your” means you, as the end user of the Services, whether you are a natural person, sole proprietorship, partnership, limited liability company, corporation or other legal entity.
2. Governing Terms. Thank you for selecting the Services offered by Swarm. This Agreement governs your use of Services, and constitutes a legally binding agreement between you and Swarm. By accessing or using the Services, or by executing and submitting a credit card billing authorization, you indicate that you understand and agree to this Agreement. If you do not agree to this Agreement, you are not granted any rights to access or use the Services, and you will not be able to access or use the Services. Your access to or use of any Services may also be subject to your acceptance of separate agreements with Swarm and/or third parties. This Agreement incorporates by reference applicable program, subscription, activation, ordering and pricing terms provided to you online or offline for the Services selected by you and for other Swarm services made available to you through these Services, which may be subject to change from time to time. This Agreement will also govern your continued purchase and use of the Services, including such additional Swarm services made available to you through the Services that you have selected.
3. Use and Restrictions. Subject to the terms of this Agreement and prompt receipt by Swarm of all applicable payments when due, Swarm grants you a single use, limited, revocable, non-exclusive, non-transferable license, during the initial term of your subscription and any applicable renewal term or other period of use provided in this Agreement, to access and use the Services, solely for the purpose described in the Swarm description for such Services. No other, further or different licensed is granted, and no rights are transferred or assigned by Swarm to you. Swarm reserves all rights not expressly granted herein.
Swarm may, from time to time, establish general practices and limits concerning the use of the Services, including without limitation, (a) the maximum number of days that email messages, guest book entries, discussion board postings or other Content posted on your website will be retained by Swarm, (b) maximum limits on bandwidth usage that will be allotted to you, (c) maximum limits on storage space, and (d) maximum time limitations for the retention of Content following a Trial Period or account cancellation.
Except as expressly permitted herein, you must not do, nor allow or assist any third party in doing, any of the following:
license, sublicense, copy, assign, lease, loan, sell, resell, republish, upload, post, transfer, or distribute the Services to any third party;
modify or create derivative works based in whole or in party upon the Services or the Swarm Licensed Content;
access or attempt to access any other Swarm systems, programs, features, content or data that are not made available in the Services or for public use by Swarm;
decompile, disassemble, debug, or reverse engineer the Services or the Swarm Licensed Content.
interfere with the proper working of the Services, prevent access to or the use of the Services or the content by other licensees or customers, or impose an unreasonable or disproportionately large load upon Swarm’s infrastructure.
use the Services, including any Swarm Licensed Content, for any purpose that is unlawful or prohibited by this Agreement.
If you violate any of these terms, your permission to use the Services terminates automatically, with immediate effect.
5. Fees. If the Services are purchased by you on a one-time payment or subscription basis, as selected by you, the following terms will apply to you. All payments must be made in U.S. dollars. Access to the Services will begin for paid versions after your acceptance of this Agreement and after Swarm receives and processes all of the applicable information, including the credit card or bank account information acceptable to Swarm. The payment information you provide must be accurate, current and complete, and you agree to notify us promptly of any change in the payment information. When you subscribe and provide payment information, your card or bank account will be charged or debited, and will be automatically charged or debited again at the beginning of each applicable monthly or one-year subscription term at the then-current subscription rate to maintain access to the Services. Cancellation and renewal terms may be supplemented by program terms provided to you in writing or on the website for the Services you have selected.
6. Trial Period. If you registered for a Trial Period, you will have the entire Trial Period within which to purchase the Services you are using in order to retain any Content that you have posted, uploaded or entered into websites made available through the Services during the Trial Period. IF YOU HAVE NOT PURCHASED OR SUBSCRIBED TO THE SERVICES BY THE END OF THE TRIAL PERIOD, THE SERVICES WILL BE CANCELLED AND ALL OF THE CONTENT WILL BE DELETED. Access to the Services will begin for a defined Trial Period after your acceptance of this Agreement and after Swarm receives and processes all of the information requested in the registration process.
7. Term And Renewal Term. Unless terminated earlier as expressly provided herein, the initial term of this Agreement shall be for a period of three (3) years commencing as of the date of your acceptance of the Agreement (as evidenced by clicking on the “I Agree” button or commencing use or access to the Services), or, if you registered for a Trial Period, immediately after the Trial Period ends and you subscribe to or pay for further Services (the “Term”). After the initial Term, this Agreement shall be automatically renewed for successive one (1) year periods (“Renewal Term”) until the Agreement is otherwise terminated as expressly provided herein.
8. Cancellation And Termination. Swarm reserves the right to terminate all or any of the Services for any reason or no reason at all, with or without notice to you. If you or Swarm cancel the Services, cancellation will immediately stop all Services. You will no longer have access to your website and all associated information and Content may be deleted by Swarm.
Swarm is not responsible for any damages to you if Services are canceled and Swarm deletes information and/or Content. BY YOUR USE OF THE SERVICES YOU UNDERSTAND AND AGREE THAT AFTER CANCELLATION, YOU MAY NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE SUCH SERVICES OR ANY INFORMATION OR CONTENT THAT YOU HAVE FURNISHED IN CONNECTION WITH ACCESSING OR USING SUCH SERVICES.
If you wish to cancel the Services and transfer your site Content to another server not operated by Swarm, you must purchase a paid-in-full, non-exclusive license of the site design, layout and all third party content not owned by you; see Section 9 below. Swarm Licensed Content on the site will only be transferred to another server with the prior written approval of Swarm, which may be withheld in Swarm’s sole discretion. You are responsible for the cost of transferring Content (and any permitted Swarm Licensed Content) to a new server.
Subject to the following, you may request cancellation of the Services at any time. To request cancellation, you must call 1-888-467-9276 from the U.S. or Canada, or (International Access Code) 919-929-2501 from all other countries (note: International calls are not toll-free). Swarm reserves the right to collect fees, surcharges or costs incurred before you cancel your Services in addition to the applicable cancellation fee(s).
You must provide us with the following information in order make it possible to process any cancellation request: (a) the exact name of the Services that you would like to cancel; (b) your username and password; (c) your email address; (e) your billing information, including the credit card number that was used when purchasing the Services; and (e) your reasons for canceling the Services.
9. Buyout. During the initial Term, You can purchase a royalty-free, non-exclusive license (“Buyout”) to transfer the site to any server of your choice for an amount of money equal to the total monthly Maintenance fees (as set forth in Swarm’s then current fee schedule) remaining in the initial Term. After the initial Term of this Agreement, provided that you are current in your payment of fees for the Services and otherwise in compliance with this Agreement, you may transfer your site and its Content (other than Swarm Licensed Content) to any server of your choice at any time without paying a Buyout fee. You are responsible for the cost of transferring Content (including any permitted Swarm Licensed Content) to a new server.
11. Security. You are responsible for maintaining the security of your account and website, and you are fully and solely responsible for all activities that occur under the account and any other actions taken in connection with the website. You agree to immediately notify Swarm in writing of any unauthorized uses of the account or any other breaches of security. Swarm cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Swarm be liable, in any way, for any acts or omissions by you or a visitor to the your site, including any damages of any kind incurred as a result of such acts or omissions.
12. Feedback. Swarm may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its services ("Feedback"). You agree that Swarm may, in its sole discretion, use the Feedback you provide to Swarm in any way, including in future modifications of the Services, Swarm Licensed Content and/or advertising, marketing and promotional materials relating thereto. You hereby grant Swarm a perpetual, worldwide, fully transferable, sublicenseable, non-revocable, fully paid-up, royalty free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information you provide to Swarm in the Feedback.
13. Reservation Of Rights And Ownership. The Services and the Swarm Licensed Content are licensed not sold, and Swarm reserves all rights not expressly granted to you in this Agreement. The Services and Swarm Licensed Content are protected by copyright, trade secret and other intellectual property laws. Swarm and its licensors, where applicable, own all right, title and interest in and to the Services and Swarm Licensed Content (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services or Swarm Licensed Content by whomever made. Swarm does not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrightable material or other intellectual property.
14. Content. You are solely responsible and liable for any and all Content uploaded, posted or stored by you using the Services. You shall not use the Services for any illegal purpose in violation of any local, state, federal or international law. You must evaluate and bear all risks associated with, the accuracy, completeness or usefulness of any Content on your site. Swarm reserves the right to remove Content which is deemed in Swarm’s sole discretion harmful, offensive, or otherwise in violation of the terms or any rules or policies Swarm has in place at the time. Without limiting the foregoing, and without limiting any other remedies, we may limit, suspend, or terminate access and use of your site or the Services, and terminate your account, prohibit access to your site, remove hosted Content, and take technical and legal steps to keep any user off the your site if we think that such user or any Content is creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of this Agreement or our policies. The following are common examples of violations that may result in immediate removal, warning, sanction, account termination, or suspension of the Services:
Posting any information, software or other materials or Content which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder;
Advocating or proposing illegal activity or discussing an intent to commit an illegal act;
Posting any Content or data to impersonate other individuals or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images of children or any third party without their consent (or a parent's consent in the case of a minor), and including posting another individual's contact information without their permission.
Posting any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or foreign law;
Seeking to exploit or harm children by exposing them to inappropriate Content, asking for personally identifiable information or the like;
Impersonating or misrepresenting your connection to any other entity or person or otherwise manipulating headers or identifiers to disguise the origin of the Content;
Impersonating or attempting to impersonate Swarm staff or other users;
Posting any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication (except as otherwise expressly permitted by Swarm) or engaging in spamming, phishing or flooding;
Encouraging others to violate Swarm policies or this Agreement;
Charging fees or other consideration for access to or use of the Swarm Licensed Content, or permitting users to download and save any Swarm Licensed Content;
Submitting any Content or programs that contain viruses, worms and/or Trojan horses or any other computer code, files or programs designed to interrupt, redirect, destroy or limit the functionality of any computer software or hardware or telecommunications;
Posting any information containing hyper-links to other sites that contain content that otherwise violates this Agreement; or
Refusing to follow Swarm staff instructions.
Swarm does not own and is not responsible for the Content or data you submit on your site. You are encouraged to archive your information and Content regularly and frequently and you bear full responsibility for archiving your information and Content and sole liability for any lost or irrecoverable information or Content.
You agree to defend, indemnify and hold Swarm, its Suppliers, its corporate affiliates, officers, directors, employees, subsidiaries and agents, harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys fees) resulting from or arising out of a claim that your Content infringes or misappropriates the intellectual property rights, or otherwise violates any other right, of a third party or a claim resulting from or arising out of your breach or alleged breach of this Agreement.
You agree that Swarm has the right (but not the obligation) to monitor the Services and Content from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Services properly, or to protect itself or its users. Swarm will not intentionally disclose any private email message unless required by law.
15. Internet Domain Names. If you utilize an Independent Third Party Domain Name Vendor ("TPDNV") to provide domain name registration services to you for the name or names associated with your site, upon request, you hereby authorize Swarm to transfer in or acquire your selected domain name or name from the applicable TPDNV to a TPDNV working with Swarm. In order to maintain a domain name registration, you must agree and remain agreeable through the term of use of the domain name, to the applicable TPDNV's terms of service. You understand that you are creating a separate contractual relationship between you and the TPDNV, and that you, and not Swarm, are responsible for all liability and obligations in connection with that relationship.
If, after registering one or more domain names that are included with any Swarm Service package, because of a your incorrect registration of a domain name or otherwise, you choose to delete a previously registered domain name and subsequently register one or more additional different domain names, you will be charged the resulting domain name registration fees.
You will be listed as the registrant and administrative contact in connection with any domain name obtained through Swarm or its affiliates; however, Swarm or its affiliates, may temporarily list itself as the registrant and administrative contact in the event that it changes to a different TPDNV until the TPDNV’s change is completed. You hereby authorize Swarm or its affiliates, to list itself as the billing contact, technical contact and name servers in connection with your domain names and to take any actions Swarm deems appropriate in those capacities. However, upon termination of the Services, Swarm and its affiliates, will immediately cease acting in those capacities including cooperating with your written requests regarding switching registrars. After transfer of any domain name outside of Swarm’s control, neither Swarm nor its affiliates will be responsible to forward any notices, emails or other correspondence to you or to take any other actions in connection with such domain name. Additionally, in the event that your account is cancelled or suspended by Swarm for lack of payment or any other reason, Swarm shall not renew any domain names that may become due for renewal during the suspension of the account. You will be solely responsible for all ongoing fees, as well as removing Swarm or its affiliates as the billing, technical contact and name servers in connection with your domain name.
16. Email. Some accounts may have email services provided by an independent Third Party Email Services Vendor ("TPESV"). We are not responsible for the actions or inaction of the then current TPESV or the unavailability or malfunction of their network or services. Swarm is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between you and the TPESV ("TPESV Dispute"). In the event of a TPESV Dispute, you hereby release Swarm and its vendors from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes.
17. Third Party Products. In connection with your use of the Services, you may be made aware of services, products, offers and promotions provided by third parties who are not affiliated with Swarm ("Third Party Products"). If you decide to use any Third Party Products, you do so at your own risk and are responsible for reviewing the terms governing such Third Party Products. You authorize Swarm to use and disclose your contact information, including name and address, for the purpose of making the Third Party Products you choose available to you. You agree that the third party, and not Swarm, is responsible for the performance of the Third Party Products. The Services may contain or reference links to websites operated by third parties ("Third Party Websites"). Swarm is not responsible for the content of, nor any link contained in such Third Party Websites. The inclusion of any Third Party Website link in the Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Swarm of any data contained in, or services made available through any Third Party Website. You acknowledge that linked Third Party Websites may contain terms and privacy policies that are different from those of Swarm. Swarm expressly disclaims any liability for use of such Third Party Products and Third Party Websites.
18. Representations and Warranties. Each party hereby represents and warrants to the other party that it: (a) Swarm has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the execution of this Agreement, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) it owns or has licensed all rights, in the Content as provided by you, or the Swarm Licensed Content as provided by Swarm, respectively.
19. Warranty Disclaimers. THE SERVICES AND THE SWARM LICENSED CONTENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The entire risk as to the quality and performance of the Services and Swarm Licensed Content is with you. Swarm does not warrant that the functions contained in the Services will meet your requirements or operate in the combination that you may select for use, that the operation of the Services will be uninterrupted or error free, or that defects in the Services will be corrected. No oral or written statement by Swarm or by a representative of Swarm shall create a warranty or increase the scope of this warranty.
SWARM DOES NOT WARRANT THE SERVICES OR THE SWARM LICENSED CONTENT AGAINST INFRINGEMENT OR THE LIKE WITH RESPECT TO ANY COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY AND DOES NOT WARRANT THAT THE SERVICES OR SWARM LICENSED CONTENT IS FREE OF ANY VIRUS, SOFTWARE ROUTINE OR OTHER SOFTWARE DESIGNED TO PERMIT UNAUTHORIZED ACCESS, TO DISABLE, ERASE OR OTHERWISE HARM SOFTWARE, HARDWARE OR DATA, OR TO PERFORM ANY OTHER SUCH ACTIONS.
Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you first access or use the Services.
Swarm is not engaged in rendering legal, or other professional service. If such assistance is required, the service of a competent professional should be sought. Swarm and its suppliers expressly disclaim any representations or warranties that Your use of the services will satisfy any statutory or regulatory obligations, or will assist with, guarantee or otherwise ensure compliance with any applicable laws or regulations, including but not limited to the Health Insurance Portability and Accountability act of 1996 ("HIPAA"), the Gramm-Leach-Bliley act of 1999, the Sarbanes-Oxley act of 2002, or other federal or state statutes or regulations. You are solely responsible for ensuring that Your use of the services is in accordance with applicable law.
20. Limitation of Liability and Damages. To the maximum extent permitted under applicable law, the entire cumulative liability of Swarm, its affiliates and suppliers, and your exclusive remedy for all matters or claims arising from or relating to this Agreement shall be limited to the amount paid by and/or due from you for the Services within the twelve (12) month period immediately preceding the event giving rise to such claim. To the maximum extent permitted by applicable law, Swarm, its affiliates and its suppliers shall not be liable for any (a) indirect, special, incidental, punitive or consequential damages; and (b) damages relating to telecommunication failures, internet and electronic communications failures, delays or limitations, loss, corruption, security or theft of data, viruses, spyware, loss of business, revenue, profits or investment, use of software or hardware that does not meet Swarm systems requirements. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Swarm and You. Swarm would not have provided the Services or the Swarm Licensed Content without such limitations.
You agree that Swarms and its affiliates and suppliers will not be liable for defense or indemnity with respect to any claim against you by any third party arising from your possession or use of the Services or the Swarm Licensed Content.
In no event will Swarm's total liability to you for all damages, losses, and causes of action (whether in contract, tort, including negligence, or otherwise) exceed the amount you paid for the Services.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, AND SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
21. Government Restricted Rights. For units of the Department of Defense, use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Contractor/manufacturer is Swarm Interactive, Inc. 105 Woodshire Lane, Chapel Hill, NC 27514.
If the Commercial Computer Software Restricted rights clause at FAR 52.227-19 or its successors apply, the Services and Swarm Licensed Content constitute restricted computer software as defined in that clause and the Government shall not have the license for published software set forth in subparagraph (c)(3) of that clause.
The Services and Swarm Licensed Content (i) were developed at private expense, and no part of it was developed with governmental funds; (ii) are a trade secret of Swarm (or its licensor(s)) for all purposes of the Freedom of Information Act; (iii) is "restricted computer software" subject to limited utilization as provided in the contract between the vendor and the governmental entity; and (iv) in all respects is proprietary data belonging solely to Swarm (or its licensor(s)).
22. Governing Law. This Agreement shall be construed in accordance with the laws of North Carolina. You consent to the exclusive jurisdiction and venue of the courts of North Carolina. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
23. Attorneys’ Fees. In the event an action is filed to enforce this Agreement or for breach of this Agreement, the prevailing party shall be entitled to recover all the costs of such action, including reasonable attorneys' fees, whether before, during, or after trial, or on appeal, or in bankruptcy proceedings.
24. Complete Agreement. This Agreement constitutes the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by a written agreement signed by Swarm. In the event of a dispute between the English and any non-English version of this Agreement, the English version of this License shall govern. Swarm may change this Agreement from time to time effective upon posting of the modified Agreement on its website. Please review the Agreement periodically on this website for changes. Swarm has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Swarm determines in its discretion to be reasonable. Your continued use of the Services after Swarm's publication of any such changes shall constitute your acceptance of this Agreement as modified.