These Terms of Service (the “Terms of Service” or “Agreement”) apply to the services we provide through SwiftlyServed (“SwiftlyServed”), and any other affiliated SwiftlyServed websites (collectively, the “SwiftlyServed Services”). Please carefully read and understand the entire contents of this Agreement before using the SwiftlyServed web site or Services. Your use of the SwiftlyServed web site and SwiftlyServed Services, your creation of a SwiftlyServed account via SwiftlyServed’s website at www.swiftlyserved.com (your “SwiftlyServed Account”), or any of the SwiftlyServed Services or products will constitute your consent and agreement to be bound by all terms and conditions of this Agreement (as amended from time to time. If you do not agree with the terms and conditions in this Agreement, we will be unable to provide any Services to you.
THESE TERMS OF SERVICE GOVERNING YOUR USE OF THE SwiftlyServed WEBSITE AND THE SwiftlyServed SERVICES INCLUDE A BINDING ARBITRATION PROVISION SET FORTH BELOW WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND PROVISIONS FOR OPTING OUT OF ARBITRATION.
By using the Services described in this Agreement, by creating a SwiftlyServed account or by using the SwiftlyServed web site or SwiftlyServed Services, you agree to be bound by all the terms and conditions of this Agreement (as may be amended from time to time). References to “you” herein are to the customer described on the website registration page. If you are not entering into this Agreement on your own behalf, you represent and warrant that you are legally authorized to enter into the Agreement on behalf of the party you represent and that your actions will legally bind such party.
SwiftlyServed may amend this Agreement at any time and will provide notice of any such amendment, on the web site. Your use of the SwiftlyServed web site or SwiftlyServed Services after the effective date of any amendment shall constitute your consent to be bound by the Agreement as amended. In addition, by accepting or using the SwiftlyServed web site or SwiftlyServed Services, you agree to periodically review this Agreement and be bound by any amendments to the Agreement.
You and SwiftlyServed are independent contractors with respect to each other. Neither party is an employee, agent, representative, broker, or partner of the other. This Agreement shall not be construed to create an association, joint venture, or partnership between the parties.
Control of Web Site
SwiftlyServed has sole control over the use of the SwiftlyServed web site and SwiftlyServed Services and has the right to prohibit or remove any materials or communications for any reason or no reason. Any audio or video recordings ("footage") obtained during service of process is exclusive property of SwiftlyServed, and may only be released for the purpose of verifying the validity of service, pending a formal judicial order or hearing, or at the sole discretion of SwiftlyServed.
Agreement to Electronic Transactions
You agree that all of your transactions with or through SwiftlyServed will be conducted electronically.
You are responsible for maintaining the confidentiality of the password that you will choose as part of the registration process for the Services (the “Password”). Subject to applicable law, you agree to be liable for all uses of your Password whether or not actually authorized by you, including, but not limited to uses of your Password to enter the web site and payment of filing or other fees to SwiftlyServed or to others. You should not give your Password to anyone who is not authorized to take actions on your behalf.
User Affirmations and Declarations
By using the SwiftlyServed web site or SwiftlyServed Services, you represent, affirm and declare that (i) you will adhere to the laws and regulations of the jurisdiction in which you are conducting business through SwiftlyServed and that you are subject to civil and criminal penalties should you violate those laws and regulations; and (ii) you understand that any information provided by SwiftlyServed to you in the course of performing the Services may be derived from third party databases with respect to which SwiftlyServed has no control, and that SwiftlyServed shall have no liability whatsoever with respect to such information, including, without limitation, in the event any such information is inaccurate, out of date, contains errors or omissions, or is otherwise incorrect in any way. SwiftlyServed is not responsible for notifying you of changes to court rules. At no time shall any contact between you and SwiftlyServed constitute the giving of legal advice by SwiftlyServed.
You are responsible for providing SwiftlyServed with accurate, complete and updated identification and contact information, including name, address, email address, facsimile number and, where applicable, bar number. SwiftlyServed is not responsible for and shall have no liability for identifying case members or case participants to a specific case file or for failure of delivery of materials to because of incorrect contact information.
You must take steps to ensure that SwiftlyServed communications are not identified as spam. SwiftlyServed shall have no liability for the failure of service or receipt of documents. Pursuant to these Terms of Service, you hereby agree to indemnify SwiftlyServed from and against all losses, claims, and expenses (including attorneys’ fees and costs) arising out of or relating to your failure to take necessary steps to ensure that SwiftlyServed communications are not identified as spam.
You understand and agree that SwiftlyServed may advance statutory filing fees, witness fees and other third party fees, including, but not limited to fees charged by the local electronic filing management system provider (collectively, “Disbursements”) on your behalf in connection with the Services. By using the Services you will be deemed to have requested SwiftlyServed to advance such fees and agree to repay such advances on the terms and conditions set forth in this Agreement and the applicable invoice.
You agree to use reasonable efforts to take precautions against the contamination of your computer systems and files by software viruses, worms or other malicious agents. At a minimum, such precautions shall include the installation, upgrading and use of commercial virus detection software to scan files and documents transmitted to SwiftlyServed.
SwiftlyServed has the sole discretion to determine the fees charged to you for using its web site or Services. Fees for the SwiftlyServed Services may vary by jurisdiction. SwiftlyServed reserves the right to change its fee structure at any time. SwiftlyServed will provide notice of any such changes to its fee structure. By accepting or using the SwiftlyServed web site or Services after such notice is provided, you agree to be bound by any such fee changes.
When submitted with the filing request, SwiftlyServed will honor all filing fee waivers, for parties who have a fee waiver granted by the Court prior to or upon acceptance of the filing. SwiftlyServed will also waive its filing service fee when a fee waiver has been granted for a mandated electronic filing case. Should the Court reject or deny the Customer’s fee waiver, SwiftlyServed will collect its filing service fees in addition to any court filing fees the clerk collects during the transaction.
You are responsible for paying to SwiftlyServed all fees for Services and paying all Disbursements, including without limitation statutory court fees, witness and other third party fees, including, but not limited to fees charged by the local electronic filing management system provider at the time your order for a Service is submitted or shortly thereafter, in U.S. dollars. Statutory court fees and witness fees of $20 or more disbursed on your behalf are assessed a 2.6% convenience fee for processing and collecting these Disbursements in accordance with applicable law. You authorize SwiftlyServed to charge your credit card, debit card, or financial institution account (via a Payment Processing Provider (“PPP”) transaction) (each a “Payment Method”), for all charges owed to SwiftlyServed with respect to Services and Disbursements you ordered via your SwiftlyServed Account or otherwise. When you provide a Payment Method to SwiftlyServed, you confirm that you are permitted to use that Payment Method. You also authorize SwiftlyServed to collect and store the related payment card or financial institution account number(s) or other information, along with other related transaction information (collectively, “Payment Information”). When you make a purchase, you authorize SwiftlyServed to charge the full amount of the transaction, including statutory court and witness fees, to the Payment Method you designate for the transaction. You also acknowledge and agree that SwiftlyServed may share any Payment Information with third parties, such as payment processors and/or credit agencies, for the purpose of checking credit, effecting payment to SwiftlyServed and servicing your SwiftlyServed Account. For purposes of this Section titled “Payment Terms”, “SwiftlyServed” refers to SwiftlyServed along with any service providers chosen by SwiftlyServed to provide the Payment Methods. The terms described in this Section titled “Payment Terms” supersede any payment terms stated on your invoices.
(a) Authorization to Pay by Credit or Debit Card. If the Payment Method you choose is to pay by credit or debit card, we may obtain pre-approval from the issuer of the card for an amount up to the amount of the purchase. We will bill your card at the time of purchase or shortly thereafter in the amounts owed to SwiftlyServed as indicated on the corresponding SwiftlyServed invoices. If you cancel an order before completion, that pre-approval may result in your funds or available credit not being immediately available. If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee. The Administrator (as defined below) may be able to change or update the card information (“Card Information”), including the card number, name on the card, expiration date, and the card verification value (CVV) code, assigned to your SwiftlyServed account at a later time or times, and in a manner that SwiftlyServed requires in its sole discretion. Any changes to the Card Information must be received by SwiftlyServed no less than ten business days before the effective date of the change. Payments will be transmitted using the most recent Card Information that is accepted and approved by SwiftlyServed as indicated in SwiftlyServed’s records. Unless you are a self-represented litigant, you represent that any credit card used to pay for a purchase from SwiftlyServed is a business or commercial card and not a card issued primarily for personal, family or household purposes.
(b) Authorization to Pay by PPP. If the Payment Method you choose is to pay by a Payment Processing Provider, you hereby authorize SwiftlyServed to electronically debit or credit, via a PPP transaction, the bank deposit account you designate from time to time (“Bank Account”). These Terms of Service, the related SwiftlyServed webpages, and information you input to such webpages (or which SwiftlyServed reasonably believes was inputted by you), during your initial enrollment in the Payment Processing Provider and any time you update or amend the same (which SwiftlyServed may require in its sole discretion), each constitute your authorization to SwiftlyServed to debit or credit your Bank Account via PPP transactions (“Authorization”), as provided in these Terms of Service. The following terms and conditions apply to the Payment Processing Provider:
1. Authorization to Debit and Credit Bank Account. You hereby authorize SwiftlyServed to initiate: (a) recurring automatic debits to your Bank Account in the amounts owed to SwiftlyServed as indicated on the corresponding SwiftlyServed invoices; and (b) credits to your Bank Account to correct any erroneous debits or provide a refund, as approved by SwiftlyServed in its sole discretion. Your Authorization also includes permission to collect the following, whether provided as part of the PPP enrollment or when you enrolled in SwiftlyServed’s Services generally: (i) your name; (ii) your current mailing address and Bank Account Information (as described in Paragraph 3. below); (iii) your Internet Protocol (IP) address; and (iv) the means used by SwiftlyServed to authenticate the person providing the Authorization on your behalf as described in the Sections below titled “Administrators and Sub-users” and “Credentials and Authorizing Transactions”. With respect to each PPP transaction you authorize, you agree to be bound by the laws and regulations of the jurisdiction in which you are conducting business through SwiftlyServed.
2. Timeframe and Amounts of Debits to Bank Account. PPP debits to your Bank Account generally will occur one to five days after the date of the invoice(s) generated by SwiftlyServed. You acknowledge that the amounts of the automatic debits to your Bank Account may vary depending on the invoice amounts.
3. Bank Account Information. In accordance with procedures established by SwiftlyServed, you agree to provide to SwiftlyServed the necessary information pertaining to your Bank Account in order to debit or credit your Bank Account via a PPP transaction, including (but not limited to) the name of your financial institution, the financial institution’s routing number, the name(s) of the owner(s) of your checking account designated as the Bank Account, and the account number of the Bank Account (collectively “Bank Account Information”). The Administrator (as defined below) may be able to change or update the Bank Account Information at a later time and in a manner that SwiftlyServed requires in its sole discretion. Any changes to the Bank Account Information must be received by SwiftlyServed no less than ten business days before the effective date of the change. PPP debit and credit transactions will be transmitted using the most recent Bank Account Information that is accepted and approved by SwiftlyServed as indicated in SwiftlyServed’s records.
4. Revoking your authorization. This Authorization will remain in full force and effect until you notify SwiftlyServed by electronic message at [email protected] that you wish to revoke this Authorization. SwiftlyServed requires at least 10 business days’ prior written notice in order to revoke (cancel) this Authorization. Revocation will not affect SwiftlyServed’s right to initiate PPP credits to your Bank Account in order to correct or adjust any debits that were processed before your revocation became effective.
5. Return of PPP Entries. If an ACH payment is returned from your Bank Account for insufficient or uncollected funds or for erroneous information, SwiftlyServed may reinitiate the returned ACH debit to your Bank Account within one to five days after the initiation of the first ACH debit. You agree to pay SwiftlyServed a returned payment fee of $25 that may be charged by SwiftlyServed, for each returned PPP debit from your Bank Account. Any amounts owed to SwiftlyServed that cannot be collected by a PPP debit will be charged to the backup credit card on file with SwiftlyServed as described below.
6. Filing Claims for Alleged Errors. If you believe a PPP debit initiated by SwiftlyServed occurred in error, there was an error in the amount of a debit, or any other error, you must file a claim with SwiftlyServed at once by contacting SwiftlyServed at [email protected], giving SwiftlyServed all information you have about the alleged error, and taking any other action(s) as reasonably required by SwiftlyServed. You have sixty (60) days after the date of the posting of the ACH debit in question to file a claim. If you file a claim with SwiftlyServed after more than sixty (60) days, SwiftlyServed will have no obligation to investigate the claim and you will have no right to recover any funds you may have lost as a result of the alleged error. If an error occurs with regard to a PPP credit, SwiftlyServed may take any action permitted by law and the Payment Processing Provider to recover the funds from your Bank Account.
7. Representations and Warranties. You represent and warrant to SwiftlyServed that: (i) you own the Bank Account; (ii) you have authority on behalf of any other owner(s) of the Bank Account to authorize SwiftlyServed to debit the Bank Account as agreed in these Terms of Service; and (iii) all PPP transactions you authorize comply with all applicable laws.
You must have an account established with SwiftlyServed prior to any Services being performed. When establishing an account with SwiftlyServed, SwiftlyServed requires a valid credit card be placed on file with SwiftlyServed as a form of payment. You will be billed for all Services provided and all Disbursements, such as statutory court fees, witness fees and other third party fees, including, but not limited to fees charged by the local electronic filing management system provider, made on your behalf. Payment for Services rendered by SwiftlyServed is non-refundable. Payment outstanding 15 days or more beyond the terms stated in an invoice is considered delinquent. Should any invoice become delinquent, SwiftlyServed reserves the right to charge the invoice amount to the backup credit card. Because all transactions are conducted electronically, you agree that the physical credit card need not be present with SwiftlyServed in order for the charge to the card to be valid, and you agree not to dispute the validity of any such charge on that basis.
You are liable for payment of all invoices. You may have a third party, such as a client of yours, pay an invoice directly to SwiftlyServed. However, it is understood that SwiftlyServed has no relationship with such third parties and has no obligation to collect from them. The payment obligation rests solely with you, and SwiftlyServed will hold you liable for payment of any invoice submitted to a third party for payment. SwiftlyServed reserves the right to impose or reduce the limit on the balance that a customer may owe us, even if not yet billed, for any or no reason. Should any invoice become delinquent and SwiftlyServed has to initiate a collections effort, all reasonable collection costs and/or legal fees will be added to the balance due.
Subscriptions may be offered for certain SwiftlyServed services. Where applicable, subscriptions are on a monthly basis, with the full month’s subscription fee due on the first of each month. Changes, additions, deletions, upgrades and downgrades to your subscriptions can be supported by contacting SwiftlyServed customer support. There is no refund for a partial month’s subscription fee upon cancellation.
SwiftlyServed’s Right to Refuse or Delay Services and Other Requests
SwiftlyServed may delay or refuse to process any request for a Service or to make a payment via a Payment Method or any other type of request (collectively, “Requests”), including without limitation requests to change or update Card Information or Bank Account Information or to authorize payment via a Payment Method, without prior notice to you if SwiftlyServed: (i) is unable to confirm to its satisfaction the person’s identity or his or her authority to make the Request; (ii) believes in its sole discretion that it is prudent for security reasons to take additional measures to verify the authority and/or identity of the person who initiated the Request; (iii) has a suspicion that the transaction may be in violation of applicable law, or the transaction is otherwise under review by SwiftlyServed; or (iv) determines that you are delinquent in payment of fees due SwiftlyServed. You agree to immediately provide to SwiftlyServed any additional information it requests in relation to this Section titled “SwiftlyServed’s Right to Refuse or Delay Services and Other Requests”, and agree to any additional methods of verification (as determined in SwiftlyServed’s sole discretion) to verify any person’s authority or identity or to verify the authenticity of a Request.
SwiftlyServed’s ability to provide the Services and Payment Methods may be dependent upon SwiftlyServed’s ability to obtain access to third party vendors, websites and networks (collectively “third party services”). In the event any third party service is unavailable or delayed for any reason, or SwiftlyServed determines in its discretion that SwiftlyServed cannot continue utilizing a third party service, SwiftlyServed may discontinue the Services or any Payment Method, delay your access to the Services or any Payment Method, and/or delay acting on any Request.
Without limiting the foregoing, SwiftlyServed is not responsible for any inconvenience, loss or damage you may incur as a result of any discontinuation of or delay in your access to any Service or ability to make a payment to SwiftlyServed via a Payment Method, or delay of any Request.
Administrators and Sub-users
The person that initially creates your SwiftlyServed Account will be identified as the administrator (“Administrator”) for your management and use of your SwiftlyServed Account. The Administrator will be required to establish a username and password, and such other security devices as SwiftlyServed may reasonably establish from time to time, (collectively, “Credentials”) upon creating a SwiftlyServed Account. The identity of the Administrator may be changed from time to time in a manner that SwiftlyServed requires in its sole discretion. You agree that the Administrator shall have the authority, on your behalf, to: (i) create your SwiftlyServed Account; (ii) enroll you in Payment Methods and authorize payments via a designated Payment Method; (iii) initiate Services; (iv) update or change your Bank Account Information or Card Information; and (vi) update your contact information (e.g., address, telephone number, etc.).
The Administrator may from time to time identify one or more sub-users via your SwiftlyServed Account (“Sub-users”) or in a manner that SwiftlyServed otherwise requires in its sole discretion. The Administrator may also remove or delete any Sub-user via your SwiftlyServed Account or in a manner that SwiftlyServed requires in its sole discretion. A Sub-user will be required to establish Credentials unique to the Sub-user. You agree that Sub-users are authorized to initiate Services and Disbursements on your behalf that result in payment(s) for Services via a Payment Method designated by the Administrator, but will not be able to: (i) enroll you in a Payment Method; (ii) update or change your Bank Account Information or Card Information; or (iii) update your contact information (e.g., address, telephone number, etc.).
SwiftlyServed may suspend the Administrator’s or any Sub-user’s access to your SwiftlyServed Account if SwiftlyServed, in its sole discretion, reasonably believes the SwiftlyServed Account is being used or accessed in an unauthorized, illegal, or disruptive manner. You agree that the Administrator and Sub-users may use the Payment Methods, your SwiftlyServed Account, and initiate any Service only: (i) for your own internal business purposes; and (ii) as authorized under, and in accordance with, these Terms of Service and your own internal policies. The Administrator and Sub-users will not initiate Services for or on behalf of any third party, or otherwise allow any third party to use your SwiftlyServed Account, without SwiftlyServed’s prior written consent.
You shall be responsible for any taxes which SwiftlyServed may be required to pay or collect under any applicable law in connection with the Services, and any such amounts paid by SwiftlyServed shall be charged to your account.
You agree to: (i) provide true, accurate, current, and complete information about yourself and/or your organization, as appropriate, as prompted by the SwiftlyServed registration form or any other form, including, but not limited to, your e-mail address for notices and any other communications; (ii) maintain and promptly update the foregoing to keep it true, accurate, current, and complete; and (iii) provide any other information that SwiftlyServed may request of you from time to time for purposes reasonably related to your use of the SwiftlyServed web site or Services.
Services Provided As Is – No Warranties
You agree that your use of SwiftlyServed Services, your SwiftlyServed Account and information on the web site is at your own and sole risk. All Services are provided on an “AS IS” and “AS AVAILABLE” basis. SwiftlyServed disclaims all warranties and duties of any kind, express, implied or statutory, including, but not limited to, any implied warranties of merchantability or fitness for a specific purpose, non-infringement or title, duties of workman-like effort, or lack of negligence. SwiftlyServed assumes no responsibility for errors or omissions on its web site and is not responsible in any way for the functionality, specifications, or any other aspect thereof. SwiftlyServed does not guarantee continuous, uninterrupted or secure access to SwiftlyServed Services, your SwiftlyServed Account or that defects in its web site will be corrected. SwiftlyServed reserves the right at any time and without prior notice to change the hours of operation to limit your access to SwiftlyServed in order to perform repairs, make modifications as a result of circumstances beyond the reasonable control of SwiftlyServed and to add or withdraw products or features to or from SwiftlyServed at any time. You are responsible for implementing sufficient procedures to satisfy your particular requirements for protection of your system and/or accuracy of data, and for maintaining a means of reconstruction of lost data. Without limiting the above, you agree that neither SwiftlyServed nor any of its parent corporations, subsidiaries, partners, employees, independent contractors, officers, directors, attorneys, agents, affiliates, representatives, successors and/or assigns (each a “SwiftlyServed Party”; collectively the SwiftlyServed Parties) makes any warranties or undertakes any duties regarding, without limitation, the following: (i) infringement of title or quiet enjoyment; (ii) functionality, including functionality of search or retrieval software; (iii) content, format, accuracy, completeness, or completion of forms; (iv) receipt (timely or otherwise), approval and/or processing of documents by courts and/or any other government agencies; (v) appropriateness or propriety of documents handled with respect to any Services; (vi) timeliness of Services; (vii) uninterrupted, secure, error or virus-free Services or storage; (viii) adequacy of fees paid to courts and/or other government agencies; (ix) any alteration or destruction of a document resulting from third parties’ unauthorized access to or use of SwiftlyServed’s website (e.g. computer hackers) and (x) any losses or damages or alteration of a document or information on any party’s computer system or elsewhere resulting from the transmission of computer “viruses” or other damaging or destructive software or software components by or through SwiftlyServed.
SwiftlyServed is not responsible for and shall have no liability for (i) identifying documents to be included in a case file, for the failure of documents to be included in a case file or for the completeness of a case file document library or case service lists; or (ii) the accuracy or completeness of case service lists identified on any of its SwiftlyServed sites or Services; or (iii) the content of any documents that are posted or distributed via its Services or in any case file.
With respect to filing documents with the court, you are solely responsible for transmitting documents correctly and in a timely fashion, for confirming the filing charges on the receipt, and for checking and responding to notifications, email or otherwise, for rejected filings or documents. If you do not receive confirmation within (3) days (or before the expiration of any filing or service deadline) documenting the completion of your assignment, it is your responsibility to immediately contact SwiftlyServed and provide details of the document transmission, including the original filing or service receipt, which was generated at the time the filing or service was performed by SwiftlyServed, to enable SwiftlyServed to determine what action should be taken, and if necessary to manually file and serve such documents before the expiration of any applicable deadline. You waive and release any claims based upon errors, defaults, or omissions if you fail to provide notice and/or resubmit to the Court or otherwise comply with this paragraph.
By uploading content to or submitting any materials, you grant (or warrant that the owner of such rights has expressly granted) SwiftlyServed a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license, with right to sublicense, to use, reproduce, distribute, modify, adapt, publish, publicly perform, publicly display, digitally display and digitally perform, translate, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout this universe; provided that SwiftlyServed may only exercise the foregoing right and license (a) in connection with its operation and maintenance of the SwiftlyServed web site and/or the provision of related goods and services to authorized users and/or their designees, and/or (b) to comply with or satisfy applicable court rules or procedures. You agree that you shall have no recourse against SwiftlyServed for any alleged or actual infringement or misappropriation of any proprietary right with respect to your communication with SwiftlyServed.
You acknowledge that the timely filing and serving of motions, briefs, and other documents in compliance with statutes, regulations, court rules, and orders requires the professional judgment of an attorney, and that attorneys appearing in a case are ultimately responsible for the timely filing of any such documents. Although SwiftlyServed will use reasonable efforts to electronically file and serve any documents for which transaction fees have been paid, you agree that neither SwiftlyServed nor any of its licensors, suppliers or contractors shall have any liability whatsoever associated with the filing, serving of, or failure to file or serve any documents submitted via the Service due to circumstances beyond its control, including but not limited to unavailability of the court system, technological malfunctioning or other issues which may cause the eFiling system to fail.
No Incidental or Consequential Damages
To the fullest extent allowed by applicable law, you agree that none of the SwiftlyServed Parties will be liable to you, your successors, agents, heirs or assigns, and/or any other person or entity for general, special, incidental, consequential, indirect, exemplary or punitive damages of any kind, including, but not limited to, those damages resulting from loss of use, data, sales, goodwill, or profits, failure to meet any duty (including good faith or reasonable care) whether or not SwiftlyServed has been advised of the possibility, or under any legal or equitable theory of liability, including theories of tort, contract, or otherwise arising out of the use of the SwiftlyServed web site or Services or the termination of your use of the SwiftlyServed web site and Services.
YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT NONE OF THE SwiftlyServed PARTIES SHALL HAVE ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY ACTIONS OR OMISSIONS BY ANY COURT AND/OR OTHER GOVERNMENT AGENCIES WITH WHOM ANY SwiftlyServed PARTY INTERACTS IN CONNECTION WITH THE SERVICES. IN PARTICULAR, NONE OF THE SwiftlyServed PARTIES SHALL HAVE ANY LIABILITY WITH RESPECT TO ANY COURT AND/OR GOVERNMENT AGENCY’S FAILURE TO PROPERLY OR TIMELY RECEIVE, FILE OR PROCESS ANY DOCUMENTS OR OTHER MATERIALS TRANSMITTED BY ANY SwiftlyServed PARTY ON YOUR BEHALF.
NO SwiftlyServed PARTY SHALL BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM YOUR USE OF THE SwiftlyServed WEB SITE, THE CONTENT, THE COMMENTS, THE INTERACTIVE AREAS, ANY FACTS OR OPINIONS APPEARING ON OR THROUGH AN INTERACTIVE AREA OR ANY THIRD PARTY COMMUNICATIONS. SwiftlyServed SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE USE OF OR INABILITY TO USE THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, THE COMMENTS, OR ANY THIRD PARTY COMMUNICATIONS.
Limitation of Liability
You agree that your sole remedy for any breach of this Agreement by SwiftlyServed or any of the SwiftlyServed Parties shall, at the option and sole discretion of SwiftlyServed, be the following: (i) correction of any Service causing you damage; or (ii) refund of the amount you paid for the particular use of the Service that caused damages incurred by you in reasonable reliance on the Service. You also agree that the damage exclusions and this limitation of liability shall apply even if any remedy of its essential purpose fails.
You agree to indemnify, defend, protect and hold harmless all of the SwiftlyServed Parties from and against all losses, claims, and expenses (including attorneys’ fees and costs) arising out of or relating to: (i) your breach of any terms of this Agreement, (ii) the determination by a jurisdiction that you have improperly utilized the Services of SwiftlyServed to violate the laws and regulations of the jurisdiction; (iii) your use of the SwiftlyServed Services or your failure to pay any sums due to SwiftlyServed or any local government; or (iv) your omissions or supplying inaccurate, out of date, erroneous or otherwise incorrect information as well as any action taken by you as a direct or indirect result of the information displayed on the SwiftlyServed web site.
SwiftlyServed reserves the right to terminate your use of the SwiftlyServed web site and Services at any time for any reason or no reason at all.
You agree to respect the intellectual property rights of SwiftlyServed and of others. Intellectual property laws protect some of the Services, including, but not limited to, our underlying technology and software. SwiftlyServed reserves all rights not expressly granted in this Agreement. You agree not to reverse engineer, reverse assemble, or otherwise attempt to discover any source code from the SwiftlyServed web site or to use any network monitoring or discovery software to determine the site architecture or extract information about usage, individual identities or users. You agree not to duplicate (other than for your records), modify, sell, distribute, or create derivative works based on any part of the SwiftlyServed Services, and you agree not to attempt to transfer any of your rights under this Agreement. You also agree not to access the Services by any means other than through the interface that is provided by SwiftlyServed on the web site. SwiftlyServed has the right to monitor your use of the SwiftlyServed website to assure compliance with these Terms of Service.
If you believe that materials that have been posted on the SwiftlyServed website have copied your work in a way that constitutes copyright infringement, please provide SwiftlyServed the following information:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
2. A description of the copyrighted work that you claim has been infringed.
3. A description of where (by URL and physical description) the material that you claim is infringing is located on the Website.
4. Your address, telephone number, and email address.
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
6. A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Upon our receipt of a takedown notice materially complying with all of these requirements, SwiftlyServed will remove, or cause to be removed, the identified materials. The individual that had posted such materials will then have an opportunity to demand reposting. You will receive notice of such if the individual properly requests reposting. Repeat offending websites, contributors (if any), or account holders (if any) will be terminated.
Notices to SwiftlyServed regarding any alleged copyright infringement should be directed to: [email protected]
Any and all media such as photographs, audio, video, and/or bodycam recordings obtained in the course of the services provided by SwiftlyServed are the sole property of SwiftlyServed. Such media will not be released to self-represented litigants, and will only be released to attorneys pending a relevant judicial/administrative hearing, court order, or subpoena.
Comments, Suggestions and Posts
By posting or submitting any remarks, ideas, comments, or suggestions for improving or changing the Services to the SwiftlyServed website (“Comments”), you automatically grant (or warrant that the owner of such rights has expressly granted) to SwiftlyServed a royalty-free, nonexclusive, perpetual and irrevocable right and license to use, reproduce, modify, publish and distribute such Comments or incorporate such Comments into any form or technology now known or later developed, and you waive any moral rights you may have that would otherwise impair the ability to have the material altered or changed in a manner not agreeable to you.
None of the Comments shall be subject to any obligation of confidence on the part of SwiftlyServed and SwiftlyServed shall not be liable for any use or disclosure of any Comments. You shall not distribute on or though the SwiftlyServed web site any Comments containing any advertising, promotion, solicitation for goods, services or funds or solicitation for others to become members of any enterprise or organization without the express written permission of SwiftlyServed. SwiftlyServed may delete your Comments at any time for any reason without permission from you.
SwiftlyServed AND YOU AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN US. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these or any prior Terms of Service were adopted; (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) claims that may arise after the termination of these Terms of Service.
References to “SwiftlyServed,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users of the Services under these or prior Terms of Service between us, You agree, by entering into these Terms of Service, that you and SwiftlyServed each are waiving the right to a trial by jury or to participate in a class action. These Terms of Service evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of Service.
Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 24 HOURS FROM THE TIME WHEN YOU FIRST ACCEPT THESE TERMS (the “Opt Out Deadline”). You may opt out of these arbitration procedures by emailing [email protected] to request the opt out. Any opt out received after the Opt Out Deadline will not be valid and you must pursue any claim in arbitration.
NOTICE OF DISPUTES. For all disputes and claims, whether pursued in court or arbitration, you must first give SwiftlyServed an opportunity to resolve your dispute or claim by sending a written Notice of Dispute (the “Notice”) to SwiftlyServed at the following address: SwiftlyServed, P.O. Box 73511, San Clemente, CA 92673. The Notice must (a) describe the nature and basis of the dispute or claim and (b) set forth the specific relief sought (a “Demand”). If SwiftlyServed and you do not reach an agreement to resolve the dispute or claim within 30 days after Notice is received, you or SwiftlyServed may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by SwiftlyServed or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or SwiftlyServed is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service and will be administered by the AAA. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator is bound by the terms of these Terms of Service. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including but not limited to, any claim that all or any part of these Terms of Service are void or voidable.
The payment of all AAA filing, administration and arbitrator fees for any arbitration initiated hereunder will be governed by the AAA Rules; provided, however that for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims under $75,000 determined to be frivolous, SwiftlyServed agrees not to seek an award of attorneys’ fees in such arbitration proceedings even if an award is otherwise available under applicable law.
Unless SwiftlyServed and you agree otherwise, any arbitration hearings will take place in the county of your billing address.
CLASS ACTION WAIVER. YOU AND SwiftlyServed AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and SwiftlyServed agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If you choose to pursue your claim in court by opting out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt out requirements above.
JURY TRIAL WAIVER.
If a claim proceeds in court rather than through arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Governing Law; Jurisdiction
This Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions.
SwiftlyServed shall not be responsible for delays or failure in performance resulting from acts beyond its reasonable control. Such acts shall include but not be limited to acts of nature, war, riot, actual or threatened acts of terrorism, labor stoppages, governmental actions, fires, floods, utility failures and earthquakes.
Third Party Rights
The provisions in this Agreement are for the sole benefit of you, the SwiftlyServed Parties and the assigns of SwiftlyServed and shall not inure to the benefit of any other person either as a third party beneficiary or otherwise.
You may not assign any of your rights or delegate any of your duties under this Agreement without the prior written consent of SwiftlyServed. SwiftlyServed may assign any of its rights or delegate any of its duties hereunder to any party whatsoever.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, the unenforceability of any provision shall not affect the enforceability of any other provision of this Agreement.
The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of the right of such party to assert or rely upon such provision or right in any other instance.
Miscellaneous; Entire Agreement
This Agreement (including any amendments hereto and your registration form) constitutes the entire agreement between you and SwiftlyServed. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the intentions of the parties as reflected in that provision and the allocation of risks set forth in this Agreement, and agree that the remaining provisions of this Agreement shall remain in full force and effect. The headings in this Agreement are included for convenience only.
You certify that you have read and understand this Agreement and state that you agree to be bound by the terms and conditions contained in this Agreement. You agree to comply with all city, county, state and federal laws and ordinances relating to the SwiftlyServed Services.