These are the rules for the Site (defined below). Kids, make sure to get your parents to review and discuss these rules with you.
All the videos, content and services here are for your use but you can’t sell them, give them to anyone, or pretend you made them. If you want to sell them, give them away or pretend you made them, you have to ask us first and we need to say it’s OK.
If you see something you don’t like, remember that all the stuff in the comments come straight from other kids and people, not from someone at Swing Issues. If someone posts ugly comments, we’ll do our best to take care of it. We all want the Site to be a good, clean place to visit.
If you write something in a comment that catches our eye, we might want to use it on the site. By posting your thoughts and getting your parent’s permission to do so, you and your parents are telling us it’s ok to repeat what you say.
If you have any issues with the Site, just tell us and we will be happy to help.
Remember to ALWAYS check with your parents before you send anything to us.
This Site is fully controlled and operated by Swing Issues Media, LLC and shall be referred to in these Terms as “Swing Issues,” “we,” “us” or “our”.
1. OWNERSHIP OF INTELLECTUAL PROPERTY
All Site software, design, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, and other copyrightable or otherwise legally protectable elements of the Site, and the selection, sequence, “look and feel” and arrangements thereof, and trademarks, service marks and trade names (individually and collectively, the “Material”) are the property of Swing Issues and/or its subsidiaries, affiliates, assigns, licensors or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws. Except as otherwise specifically noted on this Site or in connection with any particular Material, Swing Issues hereby grants you a personal, non-exclusive, non-assignable and non-transferable license to use and display, for your noncommercial and personal use only, one copy of any Material and/or software that you may print or download from this Site, including, without limitation, any files, codes, audio or images incorporated in or generated by the software, provided that you maintain (without alteration) all copyright and other notices contained in such Material and software. You further agree that where specifically noted on this Site or in connection with any Material or software, you will use such Material or software, as the case may be, in accordance with such specific terms and instructions. You acknowledge and agree that you may not sublicense, sell, assign, lease or otherwise transfer this license or any Material and that no title to the Material has been or will be transferred to you from Swing Issues or anyone else. You agree not to reproduce, modify, create derivative works from, display, frame, perform, publish, distribute, disseminate, transmit, broadcast or circulate any Material to any third party (including, without limitation, the display and distribution of the Material via a third party website) without the express prior written consent of Swing Issues. Use of Swing Issues’ and/or its licensors’ Material is only permitted with their express written permission. You further agree that you will not disassemble, decompile, reverse engineer or otherwise modify the Material. Use of spiders, robots and similar data gathering and extraction tools is expressly prohibited. All rights not expressly granted herein are reserved. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws. We require users to respect our copyrights and other intellectual property rights.
We may also provide you with access to certain features or functions that we may offer on the Site, such as the option to participate in newsletters, commenting, shopping and member profile pages. To sign up for or participate in these features or functions, you may be required to provide us with certain information about you in order for us to personalize and/or allow you to use such features and functions. For example, if we offer e-Commerce services on this Site, if you order any of our goods or services through such services, in addition to your name and contact information, we (or our operational service providers that we use to provide the e-Commerce service) may also collect and/or maintain your billing address, shipping address, selections, credit card or other payment instrument information, order number and information about your computer’s internet address and website which may have referred or directed you to the Site (e.g., the referring URL).
The Site may also provide features, functions and/or services powered by a third party social media network or other third party. For example, information may be disclosed to third party through plug-ins offered by such third party (such as Youtube and Facebook, authentication, Likes, Shares or commenting). Please take care when using any third party service and familiarize yourself with the third party’s policies and agreements, if any, that govern such use.
3. MODIFICATIONS TO SERVICE
Swing Issues reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service and Site (or any part thereof) with or without notice. You agree that Swing Issues shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or Site for any reason.
5. TEXT MESSAGING MARKETING AND PROMOTIONS
If you register for the Text Services, you acknowledge, understand and agree that you may be charged by your wireless carrier for the ability to send or receive all such messages. The standard messaging rates of your wireless carrier shall apply to all Text Services, unless noted otherwise. Under no circumstances shall Swing Issues be responsible for any wireless service charges incurred by you or by a person that has access to your wireless device, telephone number, or email address. If you change or deactivate your wireless telephone number, you agree to notify us when your wireless telephone number is no longer associated with you and identify such wireless phone number to ensure that future messages directed to you are not sent to the person to whom your old number has been or will be assigned.
You understand, acknowledge and agree that we may, at our sole discretion and without liability to you or any user, terminate our offer of any specific Text Service or all Text Services at any time without advance notice. Swing Issues may provide notice of terminations or changes in services on this Site.
6. CLOSED CAPTIONING OF INTERNET PROTOCOL-DELIVERED VIDEO PROGRAMMING
In accordance with the Twenty-First Century Communications and Video Accessibility Act of 2010, all video programming distributors that make video programming available directly to end users through a distribution method that uses the internet protocol are required to provide contact information to end users for the receipt and handling of written closed captioning complaints.
If you have a complaint regarding the Site’s compliance with the closed captioning requirements of the Twenty-First Century Communications and Video Accessibility Act of 2010, please send an email to email@example.com.
7. COMMENTS, MESSAGE BOARDS AND OTHER POSTINGS
To the extent that portions of this Site provide users an opportunity to submit, post, and/or exchange information, ideas, opinions, photographs, images, video, creative works, or any other material (the “Postings”), and/or their online user names (the “User Names”), please be advised that Postings do not necessarily reflect the views of Swing Issues In no event shall Swing Issues assume or have any responsibility or liability for any Postings or User Names or for any claims, damages or losses resulting from their use and/or appearance on this Site. You hereby represent and warrant that you have all necessary rights in and to all Postings and User Names you provide and all information they contain and that such Postings and User Names shall not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information. If your Posting incorporates the name, voice, likeness and/or image of any individual, you represent and warrant that you have the right to grant Swing Issues permission to use such name, voice, likeness and/or image of such individual appearing in the Posting in all media throughout the world in perpetuity.
By submitting a Posting, you hereby authorize Swing Issues to use, and authorize others to use, your Postings and User Names in whole or in part, on a royalty-free basis, throughout the universe in perpetuity in any and all media, now known or hereafter devised, alone, or together or as part of other material of any kind or nature, including without limitation commercial use on and advertising and promotion of the Site. Without limiting the foregoing, Swing Issues will have the right to use and change the Postings in any manner, either with or without the User Name, that Swing Issues may determine. Notwithstanding the foregoing, Swing Issues will have no obligation to use the Postings or the User Names. Please be advised that in no event shall Swing Issues assume or have any responsibility or liability for the manner in which the Posting is exploited or for any claim, damages or losses resulting from their use and/or appearance on Swing Issues, affiliated television program services or elsewhere. Swing Issues does not allow Postings which contain:
- a) private or personal information which might identify a user;
- b) profanity or obscenities;
- c) personal attacks on other individuals;
- d) slanderous, defamatory, obscene, pornographic, threatening and harassing comments; and/or;
- e) other information that Swing Issues deems in its sole discretion to be inappropriate as consistent with applicable law.
The comments, activities and message boards may be used for noncommercial purposes only. Users may not post any information intended to promote and/or generate revenue for any third party business activity. Although Swing Issues periodically monitors the content posted on this Site, we cannot be responsible for the views or opinions expressed by third parties.
Nonetheless, Swing Issues will make every effort to ensure that the comments, activities and message boards best serve the interests of all users and, therefore, Swing Issues reserves the right to refuse to post, edit, or delete comments or messages that violate the above-referenced rules, as well as revoke the privileges of users who do not comply with such rules.
Swing Issues does not represent or endorse the accuracy or reliability of any advice, opinion, statement, suggestion or other information offered by third parties that is displayed or distributed throughout our website. Users acknowledge that any reliance upon any such advice, opinion, statement, suggestion or information shall be at your sole risk.
If you believe that any content on the Site (including, without limitation, Postings) violates any of the terms of this Agreement (except for any notices covered by the Copyright Compliance Policy), please send a message to: firstname.lastname@example.org (please refer to our Copyright Compliance Policy for any notices covered by the Copyright Compliance Policy). We cannot guarantee that we will respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message.
Users of this Site who are California residents and are under 18 years of age may request and obtain removal of Postings on this Site that they themselves post by emailing us at email@example.com. All requests must be labeled “California Removal Request” on the email subject line. All requests must provide a description of the content or information in your Posting that you want removed and information reasonably sufficient to permit us to locate the material and include the name and URL (if applicable) of the website, application or other interactive service. We shall not accept requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, or may not be able to respond if you do not provide complete information.
Please also note that any requests for removal do not ensure complete or comprehensive removal of the content or information from this Site. For example, content that you have posted may be republished or reposted by another user or third party.
8. YOUR RESPONSIBILITIES
You may use this Site only for lawful, non-commercial purposes. You may not submit or transmit through this Site (whether via message boards, comments or otherwise) any material, or otherwise engage in any conduct, that:
- a) Violates or infringes the rights of others, including without limitation patent, trademark, trade secret, copyright, publicity or other proprietary rights;
- b) Involves uploading, posting, emailing, transmitting or otherwise making available any Postings that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- c) Is unlawful, threatening, abusive, hateful, defamatory, slanderous, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, vulgar, profane, obscene, or transmits any information or data that Swing Issues deems in its sole discretion to be inappropriate for this Site;
- d) Victimizes, harasses, “stalks,” degrades, attacks or intimidates an individual or group of individuals on any basis, including but not limited to religion, gender, sexual orientation, race, ethnicity, age or disability;
- e) Contains any personally identifiable information, or other information which might be used to identify or locate a user;
- f) Harms minors in any way;
- g) Impersonates any person, business or entity, including Swing Issues or its employees and agents or any forum leader, guide or host, or in any way falsely states or misrepresents your affiliation with a person or entity;
- h) Involves forging headers or otherwise manipulating identifiers in order to disguise the origin of any Postings transmitted through this Site;
- i) Contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
- j) Disrupts the normal flow of dialogue, causes a screen to “scroll” faster than other users of the Site are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
- k) Encourages conduct that would constitute a criminal offense or that gives rise to civil liability;
- l) Instigates or encourages others to commit illegal activities or cause injury or property damage to any person;
- m) Is intended to promote and/or generate revenue for any third party business activity;
- o) Otherwise interferes with the use or enjoyment of this Site by others.
9. CONTESTS, SWEEPSTAKES, ELECTRONIC POSTCARDS AND OTHER ACTIVITIES
If we offer certain e-Commerce to enable you to purchase goods and services through our Site (the “E-Commerce Service” or “Shop”), additional terms (such as those available on or through the Shop page) apply to your use and access of the E-Commerce Service which are incorporated herein by reference. The Shop on will utilize third party operational service providers. All purchases made through these third party operational service providers are subject to their respective terms and conditions of use. We are not responsible and have no liability whatsoever for goods or services you obtain through our third party operational service providers or other web sites or web pages. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any such third party, and you irrevocably waive any claim against us with respect to such sites. We are not responsible for assisting you in correcting any problem you may experience with goods and services purchased through a third party operational service provider, even if the goods or services were shown on one of the Site’s web pages. We cannot ensure that you will be satisfied with any products or services that you purchase from any third party operational service provider as those are owned and operated by independent entities. Customer service issues related to goods or services should be directed to the relevant third party operational service provider.
We do not guarantee that product descriptions or other content will be accurate, complete, reliable, current, or error-free. Descriptions and images of, and references to, products on the Site does not imply our endorsement of such products. Furthermore, any customer reviews seen in our Shop are provided by the third party operational service provider’s users and are subject to such third party operational service provider’s own community guidelines. We and our third party operational service providers reserve the right, with or without prior notice, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); and/or to refuse to provide any user with any product. Price and availability of any product are subject to change without notice.
11. DISCLAIMER AND LIMITATION OF LIABILITY
THIS SITE, AND ALL MATERIALS, GOODS AND SERVICES AND POSTINGS ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.) OR ANY GUARANTY OR ASSURANCE THE SITE WILL BE AVAILABLE FOR USE, OR THAT ALL FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS RELATING TO YOUR USE OF THE SITE. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY,AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SITE, INCLUDING, WITHOUT LIMITATION, POSTINGS AND MATTERS ASSOCIATED WITH YOUR USE OF THE SITE. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY, AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SITE, INCLUDING, WITHOUT LIMITATION, POSTINGS AND MATERIALS ASSOCIATED WITH YOUR USE OF THE SITE.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SWING ISSUES, AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, DIRECT OR INDIRECT, RELATING TO THE SITE OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, HOWEVER ARISING OR CAUSED, WHETHER FORESEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OR CHARACTERIZATION OF THE CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITING THE FOREGOING, THE SITE IS MAINTAINED ON SERVERS IN THE UNITED STATES AND SWING ISSUES DISCLAIMS ALL LIABILITY FOR ANY USE NOT SPECIFICALLY AUTHORIZED OR THAT IS IN VIOLATION OF THIS AGREEMENT OR THE LAWS OR REGULATIONS THAT MAY APPLY TO YOU IN ANY JURISDICTION OR COUNTRY.
NOTWITHSTANDING ANY CLAIM THAT A SOLE OR EXCLUSIVE REMEDY WHICH IS PROVIDED IN THIS AGREEMENT MAY OR DOES FAIL OF ITS ESSENTIAL PURPOSE, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LOSS OR DAMAGE SHALL BE LIMITED TO TERMINATE AND DISCONTINUE YOUR USE OF THE SITE. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SITE, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT SWING ISSUES ASSUMES NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS OR POSTINGS OR FOR ANY FAILURE OR DELAY ASSOCIATED WITH ANY POSTINGS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SITE FOR ANY TRANSACTIONS OR POSTINGS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
12. THIRD PARTY SERVICE PROVIDERS
Your correspondence or business dealings with, or participation in promotions of, third party service providers and advertisers found on or through this Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party service provider or advertiser, as the case may be. You agree that, to the fullest extent permissible pursuant to applicable law, Swing Issues shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party service providers and advertisers on this Site.
13. ADS AND MALWARE
We take great care and pride in creating this Site. We are always on the lookout for technical glitches that affect how the Site works. When we find them on our end, we will fix them. Unfortunately, your device may cause some glitches that affect how you see our Site and that is beyond our control.
If you experience any unusual behavior, content or ads on the Site, it may be the result of Malware on your computer. Malware-short for MALicious softWARE-is a term used to broadly classify a form of software which is installed in a computer system with malicious intentions, usually without the owner’s knowledge or permission. Malware includes computer viruses, key loggers, malicious active content, rogue programs and dialers, among others. While we continuously work closely with our partners to ensure that everything on the Site is working properly, sometimes Malware programs on your device may interfere with your experience on our Site and on other sites that you visit.
We suggest that you take actions (such as installing reputable third party antivirus software) which may help to clean your device and which could monitor or prevent future installations of Malware.
Please note that we cannot be responsible for the effects of any third-party software including Malware on your device. Please make sure to carefully read the Help or Customer Support areas of any software download site. If you do discover any Malware on your device, we also suggest you speak with a qualified technician for your device.
If, after taking the above actions, you are still experiencing any problems, please feel free to contact us.
Swing Issues reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with Swing Issues in the defense of any such claim, action, settlement or compromise negotiations, as requested by Swing Issues.
15. TERMINATION OR SUSPENSION OF ACCESS; MODIFICATION TO SITE
17. ELECTRONIC DELIVERY POLICY
By using this Site, you agree that we may provide to you required notices, agreements and other information concerning the Site electronically by posting on the home page of this Site or on the relevant web page.
18. RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS
- 2. Informal Dispute Resolution. Except with respect to Claims described in Section 18(1)(B) above, before either you or Swing Issues pursue or participate in any Claim against the other party in arbitration or court proceedings, you or Swing Issues must notify the other party of the Claim in writing at least 60 days in advance of initiating the arbitration or court proceeding in order to provide a reasonable opportunity to resolve the Claim. You may send a written notice of your Claim to Swing Issues at 3200 North Ocean Blvd., Unit 2407, Fort Lauderdale, Florida 33308, United States of America, Attention: Legal. Swing Issues may send written or electronic notice of its Claim to your email address, Swing Issues account or any physical or other address Swing Issues has for you. The notice must describe the Claim in reasonable detail and set forth the relief requested so that the other party has an opportunity to adequately address the Claim. Except with respect to Claims described in Section 18(1)(B) above, you and Swing Issues agree to negotiate in good faith with each other to try to informally resolve the Claim and, if you and Swing Issues do not reach an informal resolution of the Claim within 60 days, then the Claim may be submitted to binding arbitration as set forth in this Section of the Agreement or court as permitted by Section 16(1) above.
- 3. Arbitration Proceedings and Costs. Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. The AAA Rules, and other information about the AAA, are available at the AAA’s website at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s website (see “Demand for Arbitration, Consumer Arbitration Rules”, under Rules and Forms, Consumer Forms, at https://www.adr.org, but contact the AAA if you have issues locating the form) and arbitration proceedings shall be initiated in the location described in “GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE, JURISDICTION AND JURY TRIAL WAIVER” below. As required by the AAA Rules, if you initiate the arbitration proceedings, you must send the original copy of the completed form to Swing Issues, which should be sent to Swing Issues at the following address: 3200 North Ocean Blvd., Unit 2407, Fort Lauderdale, Florida 33308, United States of America, Attention: Legal. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. In all cases, you and Swing Issues shall exchange documents and other information that you or Swing Issues intend to use in the arbitration.
- The AAA Rules will govern payment of filing, administration and arbitrator fees to the maximum extent permitted by law. The decision of the arbitrator will be binding and conclusive on all parties, and judgment to enforce the decision may be entered by any court of competent jurisdiction.
- 4. Class Action Waiver. UNLESS YOU SUBMIT A VALID ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE (AS DESCRIBED IN SECTION 18(5)), YOU AND SWING ISSUES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and Swing Issues expressly agree that any Claim is personal to you and Swing Issues, shall only be resolved by an individual arbitration (or individual court proceedings with respect to Claims excluded from mandatory arbitration as described in Section 18(1) of this Agreement), and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator (or court if the Claim is excluded from mandatory arbitration as described in Section 18(1) of this Agreement) may only conduct an individual arbitration (or court action if the Claim is excluded from mandatory arbitration as described in Section 18(1) of this Agreement), and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding. If a court or arbitrator determines that this class action waiver is unenforceable in an action between you and Swing Issues, then this Agreement to arbitrate will be unenforceable. Neither you nor Swing Issues consent to class arbitration.
- 5. Right to Opt Out of Mandatory Arbitration and Class Action Waiver. IF YOU DO NOT WISH TO BE BOUND BY THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS IN SECTIONS 18(1), 18(3) AND 18(4), YOU MUST NOTIFY SWING ISSUES IN WRITING (THE “Arbitration/Class Action Waiver Opt-Out Notice”), WHERE THE ARBITRATION/CLASS ACTION WAIVER OPT-OUT NOTICE MEETS ALL OF THE FOLLOWING REQUIREMENTS:
(a) Sent by first class mail, postage prepaid, certified and return receipt requested or sent by overnight courier service (such as Federal Express) to Swing Issues Media, LLC, Attention: Legal, 3200 North Ocean Blvd., Unit 2407, Fort Lauderdale, Florida 33308, United States of America
(b) Postmarked (if sent by first class mail) or deposited with the overnight courier service no later than (A) 45 days after the date you accept this Agreement for the first time, or (B) the date which email notice of the Agreement containing this Section of the Agreement, if any, was sent to the email address associated with your user registration, unless an earlier deadline in Section 18(5)(b)(C) applies or (C) for all other users of the Site, 45 days after you accept this Agreement for the first time, unless a longer period is required by applicable law.
(c) Includes your first and last name, address, phone number, email address and, if applicable, your username if you are a registered user of the Swing Issue Site, application(s) or other interactive services(s) for each such username. We shall use the foregoing information included in the Arbitration/Class Action Waiver Opt-Out Notice to record, process, maintain and administer your opt-out of the mandatory arbitration and class action waiver provisions and not for marketing purposes.
(d) Includes a statement that you do not agree to the mandatory arbitration and class action waiver.
If the Arbitration/Class Action Waiver Opt-Out Notice meets all of the above requirements, you will be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Section 18(1), Section 18(3) and Section 18(4) with respect to the Swing Issues websites, applications or other interactive services. Note that a valid Arbitration/Class Action Waiver Opt-Out Notice applies only to the individual identified in such notice as opting out.
If the Arbitration/Class Action Waiver Opt-Out Notice does not meet all of the above requirements, you will not be deemed to have opted out of the mandatory arbitration and class action waiver provisions in Section 18(1), Section 18(3) and Section 18(4).
19. GOVERNING LAW, ARBITRATION LOCATION, JURISDICTION, VENUE, AND JURY TRIAL WAIVER
With the exception of the provision above that the enforceability of “RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS” above is governed both procedurally and substantively by the FAA, this Agreement and your use of the Site is otherwise governed by, construed and enforced in accordance with the laws of the State of Delaware (without regard to that state’s conflict of laws rules).
You or Swing Issues shall initiate arbitration in the State of Florida. You and Swing Issues agree that any Claim that is allowed to proceed in court as set forth in Section 16(1) above (including, but not limited to, as a result of your submission of a valid Arbitration/Class Action Waiver Opt-Out Notice), or otherwise proceeds in court in the event the agreement to arbitrate above is found not to apply to you or a particular Claim as a result of a decision by the arbitrator or a court order, is subject to exclusive jurisdiction and venue in the State or Federal Courts situated in the city of Miami, State of Florida.
To the extent it may be applicable, you and Swing Issues agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. If any Claim proceeds in court rather than in arbitration, YOU AND SWING ISSUES WAIVE ANY RIGHT TO A JURY TRIAL.
Swing Issues operates and controls this Site from its offices at 3200 North Ocean Blvd., Unit 2407, Fort Lauderdale, Florida 33308, United States of America. This Site is intended exclusively for residents of the United States. We make no representation that content on this Site is appropriate or available for use in locations outside the United States. If you choose to access this Site from a location outside the United States, you do so of your own initiative and you alone are responsible for compliance with local laws. Under no circumstances is Swing Issues responsible for ensuring that the Site is in compliance with the local laws of jurisdictions outside the United States. No software from this Site may be downloaded, exported or re-exported in violation of any law including, without limitation, to countries that are subject to U.S. export restrictions.
No Right of Survivorship and Non-Transferability. You agree that your Swing Issues account is non-transferable and any rights to your membership ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
21. COPYRIGHT POLICY
We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over this Site and to promptly end any infringement that might occur. If you believe that the Site contains elements that infringe your copyrights in your work, please follow the procedures set forth below:
22. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
Swing Issues respects the intellectual property of others, and we ask our users to do the same. Swing Issues may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be intentional or repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide Swing Issues the following information in a writing signed (either physically or digitally) by the owner of the copyright or other intellectual property interest or a person authorized to act on his or her behalf:
- a) a description of the copyrighted work or other intellectual property that you claim has been infringed;
- b) a description including the url of where the material that you claim is infringing is located on the site;
- c) your address, telephone number, and email address;
- d) a statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property owner, its agent, or the law;
- e) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You may give the above notice to Swing Issues:
By mail:Swing Issues Media, LLC, Attention: Legal, 3200 North Ocean Blvd., Unit 2407, Fort Lauderdale, Florida 33308, United States of America
By email: firstname.lastname@example.org
23. TRADEMARK INFORMATION