Welcome to SWIVL (“SWIVL,” “we,” “our,” or “us”), a provider of technology services that enable home-services businesses agreeing to these Terms of Service to run their businesses. By accessing or using the services described herein, you represent that you have read, understand, and agree to be bound by these Terms of Service (“Agreement”). This Agreement, together with the SWIVL Privacy Policy, applies to those who access, enroll in, or use the SWIVL’s services (“Users,” used interchangeably with “you” throughout this Agreement). “User” means you as an individual, as well as the employer or entity on whose behalf you are using the services, and you represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and such employer or entity. “User” also includes any other SWIVL consumers that use the services under this or related Agreements.

You acknowledge and agree that we may amend this Agreement at any time by posting a revised version of this Agreement on the services at www.swivl.tech/swivl-terms-of-service “Our Website”) or by notifying you directly in our sole discretion. Your continued use of the services after any changes are made to this Agreement shall constitute your consent to such changes. We do not and will not assume any obligation to notify Users of any changes to this Agreement. You are responsible for remaining knowledgeable about the terms of the Agreement. 

 

SUBSCRIPTION FEE FOR USE OF SWIVL

Subscription fee – SWIVL has various levels of service that are billed on a subscription basis for the term as specified when you subscribed. When you sign up for a subscription-billing based account, you agree to pay for, and to allow us to bill your credit card (or other payment method provided by you) for, all due charges, including all taxes and other applicable charges, in advance, at regular intervals, in accordance with the term of the Services to which you subscribed. The subscription period can be month-to-month, annual, or another duration described more fully on www.swivl.tech/terms. You understand and agree that we may elect to modify your billing frequency at any time, without notice, including, for example, billing a monthly subscription on a weekly basis. ALL SUBSCRIPTIONS AUTOMATICALLY RENEW, IF NOT TERMINATED PRIOR TO SUCH AUTO-RENEWAL FOR A PERIOD EQUAL TO THE SUBSCRIPTION PERIOD. For renewals, SWIVL will automatically charge your payment method in the amount of the then-current fee for your type of account, plus applicable taxes. You hereby authorize us to re-bill for any failed billing or past-due amounts, including charging any alternate forms of payment that you have provided. Subscription fees will not be prorated or refunded, except as expressly set forth in this Agreement. We will bill you a full period’s subscription fee and you are responsible for payment of such fee unless the cancellation is within our Money-back guarantee window (see below). We reserve the right to revise pricing, for any or all of our offerings, at any time, and such revised pricing shall become effective upon our provision of  notice or as otherwise provided in such notice.  Any fees not paid when due may incur late payment fee equal to the lesser of 1.5% per month or the maximum amount allowed by law.

 

Money-back guarantee – In select agreements, when specifically communicated to you, we offer a money-back guarantee for the first 30 days. We will refund you all of the subscription charges if you cancel within this time period. You will not receive a refund for items not included in the baseline monthly subscription fee (including activation fees, postcards, chargebacks, etc.). This money-back guarantee does not apply to re-enrollments, renewals after your first subscription or upgrades. 

To cancel your service and request a refund, please email us at account-services@swivl.tech.

 

LICENSE

Subject to User’s compliance with this Agreement, SWIVL hereby grants User a  revocable, non-exclusive, non-transferable right to access and use the Service, solely in the conduct of User’s normal course of business, and in accordance with this Agreement. User understands and agrees that the Service is provided under license to User, not being sold to User, and User does not gain any ownership interest of any kind in the Service under this Agreement.

SWIVL will not be liable if, for any reason, all or any part of the Service is unavailable at any time or for any period. From time to time, SWIVL may restrict access to some parts of the Service, or the entire Service, to Users. SWIVL does not make any representations or guarantees regarding uptime or availability of the Service.

 

COMMUNICATING WITH YOU/TCPA CONSENT; WITHDRAWING CONSENT; HELP

You authorize SWIVL, inclusive of its agents, affiliates and independent contractors, to contact you at the email address(es) and telephone number(s) that you have provided to SWIVL for advertisement, telemarketing, solicitation or other purposes, using an automated telephone dialing system, a pre-recorded voice to deliver a message, or texting you, even if you have previously requested to be placed on our Do-Not-Call list, or your phone number appears on a state or federal Do-Not-Call list, or you have previously opted-out from receiving marketing emails from us. You can withdraw your consent to receive text messages at any time by replying with a text saying “STOP”. After you send a message “STOP” to us, we will send you a text message to confirm that you have been unsubscribed. After this, you will no longer receive text messages from us, unless you thereafter provide consent. If you are experiencing issues with the text messaging program, you can get help directly at account-services@swivl.tech.  Neither the carriers, nor SWIVL are liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us, and to us from you.  Message frequency may vary. If you have any questions about your text or data plan, it is best to contact your wireless provider. If you have any questions regarding privacy, please read our privacy policy www.swivl.tech/privacy. You can unsubscribe from receiving marketing messages from us in the settings of your account. If you do not consent to receive these messages or if you later unsubscribe from receiving marketing solicitations, you may miss out and not receive certain messages from SWIVL. Consent to receive such communications is not a condition to using our services, and if you choose not to consent, you may opt out by calling +1 (404) 383-6112.

You also agree that all personal information you provide to register with the Service is governed by our Privacy Policy, and you consent to all actions SWIVL takes with respect to your personal information consistent with its Privacy Policy. Where it is permitted by law, SWIVL may rely on your implied consent. You also represent and warrant that you have obtained all necessary consents for any communications to your employees and Users that are facilitated by or delivered via our Service. 

 

ARTICLE 1 – The Services

1.1 SWIVL shall perform the services described in the attached schedules (the “Services”) in accordance with these terms of service (“Agreement”), the schedules attached hereto (“Schedules”), and all modifications issued hereafter consistently with this Agreement (the “Contract Documents”). The Parties have entered into this Agreement based on their own examination, investigation and evaluation and not in reliance upon any extra-contractual opinions or representations of any Party. SWIVL shall perform all Services in a good and workmanlike manner consistent with the standards in the industry and in accordance with the Contract Documents, which are incorporated into this Agreement.

1.2 User shall obtain all licenses or permissions required for the operation of User’s business(es) by any State in which User uses the Services provided by SWIVL. SWIVL shall reasonably cooperate with User in User’s attempts to obtain any necessary licenses or permissions, but SWIVL shall bear no responsibility for obtaining those licenses or permissions. 

 

ARTICLE 2 – Price

2.1 User shall pay to SWIVL for the satisfactory performance and completion of the Services under this Agreement the sum(s) set forth in the Schedules (“Service Price”), subject to any additions and deductions herein provided.

2.2 The Service Price shall not include legal, mediation, arbitration or other costs, including attorney fees, as set out below.

2.3 The Service Price includes all taxes for labor and materials provided by SWIVL to User, where applicable by law, whether or not the Schedule identifies such taxes. SWIVL is wholly responsible for paying all taxes related to the Subcontract Price.

 

ARTICLE 3 – Payment Conditions

3.1 User shall pay the Service Prices no less than 30 calendar days after the Monthly Billing Date identified in each  Schedule.

3.2 Interest on the Service Prices due SWIVL shall accrue at the greater of: a) a monthly rate of 1.5% or b) at the maximum rate permitted by law, beginning on the 31st calendar day following the Monthly Billing Date. 

3.3 SWIVL’s acceptance of any payment shall not constitute a release of User from all claims or liability.

 

ARTICLE 4 – Time and Timeliness

4.1 Time is of the essence in the performance of this Agreement. SWIVL agrees to take all steps reasonably necessary to ensure that it provides the Services as prescribed by the relevant Schedule.

4.2 SWIVL agrees: (i) to avoid delays in the provision of Services as reasonably possible; and (ii) to notify User immediately and confirm in writing within 48 hours, if SWIVL finds that any item cannot be delivered as required by the Schedule governing the provision of that Service. 

4.3 In the event of a service delay or interruption by SWIVL, User shall not be entitled to liquidated damages. SWIVL’s liability to User shall be limited to the sum of the Service Prices paid by User over the annual term during which User claims injury from SWIVL’s failure to deliver timely any and all materials or failure to perform timely any and all Services.

 

ARTICLE 5 – Term

5.1 The relevant Schedule shall state the initial term for the provision of any Service.

5.2 Any subsequent term shall commence on the day following the last day of the preceding term for the provision of any Service (“Renewal Date”). Such subsequent terms shall commence automatically, subject to the provisions of Articles 6.2, 6.3 and 14 below.  

 

ARTICLE 6 – Changes

6.1 User may, by written directive to SWIVL, add or delete Services by completing and signing the relevant Schedule, which shall at that point become part of the Contract Documents.

6.2 No earlier than 30 days before the Renewal Date, SWIVL may publish a revised Schedule altering the terms, including the Service Price, contained in that Schedule (“Revised Schedule”). If User does not terminate the Schedule as prescribed in Section XX, the Revised Schedule shall go into effect on the dated stated therein, and shall govern SWIVL’s provision of the Service described in that Schedule for another year. If SWIVL does not publish a Revised Schedule, the existing Schedule shall renew for an additional year, subject to User’s right to terminate the Schedule at will pursuant to Section 15. 

6.3 SWIVL may, at its sole discretion, alter the terms of service by posting a revised version of this Agreement on its website or by notifying you directly in our sole discretion. User’s use of the Services after any changes are made by SWIVL to this Agreement shall constitute User’s consent to such changes.

 

ARTICLE 7 – Service Data

7.1 User may, in using the Services, provide SWIVL with information about its business, including:

7.2 Payment Information. Except as described in 16.1, SWIVL has no liability for any funds paid that were charged from User’s account or payment information on file with SWIVL. User shall notify SWIVL immediately of any unauthorized use of User’s account. 

Geolocation Data

 

ARTICLE 8 – Damages

8.1 IN NO EVENT SHALL WE, OUR OFFICERS, DIRECTORS, AFFILIATES, PARTNERS, PARENT COMPANIES, EMPLOYEES AND/OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATING TO (1) THIS AGREEMENT, OR THE USE OF, CONTENT IN, DELAY OR INABILITY TO USE, OR OTHERWISE ARISING IN CONNECTION WITH THIS SERVICE, (2) THE CONDUCT OF A USER, USERS OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. WE ARE NOT LIABLE FOR ANY LOST DATA RESULTING FROM THE OPERATION OF THE SERVICE OR THE ENFORCEMENT OF THE TERMS. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTY USERS, CONSUMER USERS, ADVERTISERS AND/OR SPONSORS ON THE SERVICE, IN CONNECTION WITH THE SERVICE OR OTHERWISE RELATED TO YOUR USE OF THE SERVICE. BY USING THE SERVICE, YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE. IN NO EVENT WILL SWIVL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, EVEN IF FORESEEABLE, EXCEED THE SUM OF ALL FEES PAID BY YOU TO SWIVL IN THE PREVIOUS SIX (6) MONTHS. TO THE EXTENT YOUR STATE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

 

ARTICLE 9 – Indemnity

9.1 SWIVL agrees to defend, indemnify and hold harmless User and its officers, directors, agents and employees, separately and severally from and against any third-party claim, cost, expense, fine, forfeiture or liability (including legal and accounting fees and associated costs) (“Third-Party Claim”) for injury directly caused by the performance of the Services by SWIVL or its agents or employees. Upon User’s written request SWIVL shall promptly assume the defense of such claim, suit, action or proceeding at SWIVL’s expense. Alternatively, User may, in its sole discretion, defend the same at SWIVL’s expense. SWIVL’s obligation hereunder shall not be limited as to an amount or type of damages by the provisions of any compensation act, disability act or other employee benefit act.

9.2 User agrees to defend, indemnify and hold harmless SWIVL and its officers, directors, agents and employees, separately and severally from and against any Third-Party Claim for injury caused by User’s use or modification of Services properly provided by SWIVL or its agents or employees. Upon SWIVL’s written request, User shall promptly assume the defense of such claim, suit, action or proceeding at its expense. Alternatively, SWIVL may, in its sole discretion, defend the same at User’s expense. User’s obligation hereunder shall not be limited as to an amount or type of damages by the provisions of any compensation act, disability act or other employee benefit act.

9.3 The Parties do not intend their indemnification obligations to one another to extend to the injuries associated with a Third-Party Claim caused by the other Party. For Third-Party Claims alleging injury by both Parties, each Party shall control and pay for its own defense, and be responsible only for that portion of any relief granted that is adjudicated to be caused by that Party.

 

ARTICLE 10 – Assignments

10.1 The Parties shall not assign their rights under this Agreement, except as expressly permitted by each other.

 

ARTICLE 11 – Compliance

11.1 SWIVL shall, at its own expense, obtain all necessary licenses and permits pertaining to its provision of the Services. SWIVL shall comply with all statutes, ordinances, rules, regulations and orders of any authority having jurisdiction over SWIVL’s provision of the Services to User.

11.2 User shall, at its own expense, obtain all necessary licenses and permits pertaining to its use in any relevant jurisdiction of the Services provided by SWIVL. User shall comply with all statutes, ordinances, rules, regulations and orders of any authority having jurisdiction over User’s deployment and use of the Services.

 

ARTICLE 12 – Warranties and Guarantees

12.1 WE MAKE NO REPRESENTATION ABOUT THE SUITABILITY OF THE CONTENT ON OR SERVICES OF THIS SERVICE FOR ANY PURPOSE. SWIVL DOES NOT WARRANT OR GUARANTEE THE LEGALITY OF USER’S DEPLOYMENT AND USE OF THE SERVICES IN ANY PARTICULAR JURISDICTION. WE DO NOT PROMISE THAT THE SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, OR THAT IT WILL PROVIDE SPECIFIC RESULTS FROM USE OF THE SERVICE OR ANY CONTENT, SEARCH OR LINK ON IT. WE MAKE NO REPRESENTATION THAT YOUR WEBSITE WILL SATISFY ANY REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT OR OF ANY OTHER LAW, REGULATION OR ORDINANCE GOVERNING ACCESSIBILITY OF WEBSITES OR PLACES OF PUBLIC ACCOMMODATION OR OF ANY PRODUCTS OR SERVICES. THE SERVICE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. WE SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THIS SERVICE, DOWNTIME OF THE SERVICE, FOR YOUR ACTION OR INACTION IN CONNECTION WITH THIS SERVICE OR FOR ANY DAMAGE TO YOUR COMPUTER OR DATA OR ANY OTHER DAMAGE YOU MAY INCUR IN CONNECTION WITH THIS SERVICE. WE SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE MAKE NO GUARANTEES OF ANY SPECIFIC RESULT FROM USE OF THIS SERVICE. YOUR USE OF THIS SERVICE IS AT YOUR OWN RISK. WE MAY FROM TIME TO TIME RECOMMEND, PROVIDE YOU WITH ACCESS TO, OR ENABLE THIRD PARTY SOFTWARE APPLICATIONS, PRODUCTS, SERVICES, CONTENT OR WEBSITE LINKS INCLUDING THIRD PARTY SERVICES (“ADDITIONAL SERVICES”) FOR YOUR CONSIDERATION OR USE. SUCH ADDITIONAL SERVICES ARE FOR YOUR CONVENIENCE ONLY AND WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER REGARDING SUCH ADDITIONAL SERVICES. 

12.2 WE MAY PROVIDE YOU WITH ACCESS TO CERTAIN CONTENT, MATERIALS, INFORMATION, COACHING, AND PARTNER AND THIRD-PARTY SERVICES, REGARDING OR RELATING TO YOUR BUSINESS, TAXES, ACCOUNTING OR LEGAL INFORMATION, BUT YOU ACKNOWLEDGE AND AGREE THAT NEITHER WE, NOR ANY OF OUR PARTNERS OR THIRD-PARTY SERVICE PROVIDERS ARE PROVIDING ANY TAX, LEGAL, ACCOUNTING, BUSINESS OR OTHER ADVICE TO YOU, AND YOU AGREE AND ACKNOWLEDGE THAT YOU ARE NOT ENTITLED TO RELY UPON ANY SUCH INFORMATION YOU RECEIVE FROM US OR OUR PARTNERS OR THIRD-PARTY SERVICE PROVIDERS, WHETHER VIA OUR WEBSITE, THE SERVICE OR ANY COMMUNICATIONS WITH US, OR ANY SOCIAL MEDIA OR OTHER INTERNET POSTS. YOU AGREE THAT YOU WILL CONSULT APPLICABLE OUTSIDE PROFESSIONALS WITH REGARD TO ANY TAX, ACCOUNTING, LEGAL OR BUSINESS ADVICE. 

12.3 User warrants that in deploying and using the Services, it shall comply with all applicable legal requirements, including but not limited to all legal requirements regarding the handling of consumer data and personally identifiable information. 

 

ARTICLE 13 – Independent Contractor

13.1 SWIVL acts as an independent contractor and not as an agent or employee of User and, consistent with the Contract Documents, may provide the Services by any appropriate means it may choose.

 

ARTICLE 14 – Intellectual Property

14.1 Patents and Copyrights: SWIVL shall defend, indemnify and save harmless User from and against any claim, cost, expense or liability (including attorneys’ fees) arising out of or resulting from SWIVL’s infringement or alleged infringement of any patent rights or copyrights in connection with the Services.

14.2 Intellectual Property: SWIVL owns all rights, including without limitations, any intellectual property rights in and to everything SWIVL makes, conceives, develops, discovers, reduces to practice or fixes in a tangible medium of expression in accordance with the Contract Documents.

 

ARTICLE 15 – Termination and Default

15.1 Termination at Will: Either Party, by written notice, may terminate any Schedule attached to this Agreement upon written notice to the other no later than 20 days before that Schedule’s Renewal Date. Such termination shall take effect upon the Renewal Date. After the Renewal Date, neither Party shall be entitled to any other compensation or payment in the event of a termination at will of a Schedule other than as specifically provided in the Contract Documents. 

15.2 Termination for User Default: SWIVL may terminate: (a) any Schedule with a delinquent Service Price balance due SWIVL for more than 60 calendar days after the Monthly Billing Date; or (b) any or all Schedules upon an Event of Default by User under this Agreement, or any breach of any other contract between the Parties. Upon User’s default on or breach of this Agreement or any other contract with SWIVL, SWIVL reserves the right to deem this Agreement in default, interrupt and/or cease its provision of the Services under any Schedule, and set-off and apply funds and payments made by User under this or any contract with SWIVL. SWIVL’s right to terminate remains subject to User’s right to cure as described at XX below.

15.3 User’s Default and Cure: In addition to the duties specified elsewhere herein, each of the following events shall constitute a default of User’s obligations under this Agreement (“Event of Default”): User (i) voluntarily seeks protection of the federal bankruptcy laws; (ii) is involuntarily placed in bankruptcy; (iii) has an action brought against it that impairs its ability to perform its obligations under this Subcontract; (iv) makes a general assignment for the benefit of creditors; (v) is appointed a receiver; (vi) fails to make prompt payments for the Services supplied by SWIVL; (vii) disregards any law, ordinance, rule, regulation or order of any public authority related to the Services; or (viii) otherwise violates any provision of the Contract Documents.

15.4 Termination for SWIVL’s Breach: User may terminate this Agreement if SWIVL breaches this Agreement. User may terminate any Schedule if SWIVL breaches this Agreement or the Schedule User seeks to terminate. User’s right to terminate remains subject to SWIVL’s right to cure as described at 15.5 below.

15.5 Parties’ Right to Cure: A Party seeking to terminate any Schedule or this Agreement for breach or default by the other Party shall notify the other Party in writing of that Party’s breach or default. The notified Party shall cure such default within three calendar days after delivery of such notice. If the notified Party does not cure within such time, the notifying Party’s termination shall take effect immediately. Such termination shall not release or waive any Party’s rights or remedies against the other Party or its sureties, and shall not prejudice any other rights of the notifying Party under this Agreement or the law.

 

ARTICLE 16 – Claims and Disputes; Arbitration

16.1 Direct Negotiation: User and SWIVL shall attempt in good faith to directly negotiate and resolve all claims, disputes, and other matters in question arising between them and out of or relating to this Agreement.

16.2 Arbitration: If any such claim or dispute cannot be so resolved, the Parties hereby agree to submit said claims or disputes to binding arbitration, which shall be conducted in accordance with the American Arbitration Association’s Commercial Arbitration Rules (“Rules”). Either Party may provide the other with a demand for arbitration after direct negotiation has been unsuccessful, and before the date when the institution of legal or equitable proceedings would be barred by the statute of limitations. Either Party shall demand arbitration no later than one year after the date on which that Party’s cause of action accrued, but in no event after final payment to SWIVL. The Parties shall continue to perform under this Agreement during the pendency of any direct negotiation and/or arbitration.

16.3 Final Award: The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

 

ARTICLE 17 – Confidentiality

17.1 The Parties shall comply with the terms of any nondisclosure agreement executed by them (“NDA“). 

17.2 SWIVL will not use any trade name, trademark, or any proprietary rights of User or any of its affiliates without User’s permission. Except as compelled by law, SWIVL shall not disclose to unauthorized persons any log-in or payment processing information disclosed by User to SWIVL.

17.3 User is responsible for disclosing its account password and payment processing information only to those persons authorized by User to assist in SWIVL’s provision of Services to User. User shall promptly advise SWIVL of any disclosure of this information to persons not authorized to assist SWIVL in the provision of Services to User. SWIVL shall not be liable for any losses or injury incurred by User due to User’s failure to maintain the confidentiality of the above-described information.

17.4 We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will not be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide such information at your own risk, and that we have no liability to you or any third parties due to any unauthorized access to your SWIVL account.

 

ARTICLE 18 – Release

18.1 IN EXCHANGE FOR THE SERVICE PROVIDED BY US AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, USER EXPRESSLY AGREES TO RELEASE SWIVL, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, PARTNERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES AND DAMAGES (DIRECT AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE YOU HAVE, EXCEPT THAT THIS RELEASE DOES NOT APPLY TO CLAIMS BY YOU DIRECTLY ARISING OUT OF SWIVL’S MATERIAL BREACH OF THIS AGREEMENT, OR TO THE EXTENT THE FOREGOING RELEASE IS PROHIBITED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

 

ARTICLE 19 – Miscellaneous

19.1 Governing Law: The validity, interpretation and performance of this Agreement shall be governed by the laws of Georgia.

19.2 No Third-Party Beneficiaries: This SWIVL Agreement is intended solely for the direct benefit of the parties hereto. There are no third-party beneficiaries of this Agreement.

19.3 Severability: The provisions of this SWIVL Agreement are severable. Should any provision of this SWIVL Agreement or any provision of the Contract Documents applicable to SWIVL be unenforceable, the remaining provisions shall remain valid and binding.

19.4 Non-Waiver: User’s failure at any time to enforce or to require strict compliance or performance by SWIVL, or any SWIVL, with any of the provisions of this SWIVL Agreement or Contract Documents shall not constitute a present or future waiver of any such provision and shall not affect or impair in any way User’s rights at any time to enforce any such provision or to avail itself of such remedies as it may have for any breach thereof.

19.5 Conflict of Terms: In the event of any conflict in the terms of any documents related to this Subcontract, including, but not limited to Services orders, change orders, quotes, estimates or other documents, the terms of this SWIVL Agreement and the Contract Documents shall prevail. No inconsistent terms or conditions are accepted and all such terms are hereby excluded and of no effect.

19.6 Survival of Terms: The terms of this SWIVL Agreement and the Contract Documents shall survive and remain in full force and effect after termination of this SWIVL Agreement or completion of the Services.

19.7 Only Written Modification: No changes, modifications or amendments of any of the terms and conditions shall be valid unless agreed to by the parties in writing and signed by their authorized representatives.

19.8 Headings: Headings are for convenience of the reader and are not a substantive part of this Subcontract.

19.9 Notice: Any required notice to a Party may be accomplished by mailing or delivering written notice to the address listed for that Party herein.

19.10 Venue: Venue for any dispute shall be in those courts entitled to exercise jurisdiction over matters originating in the City of Atlanta, Fulton County, Georgia. The Parties hereby expressly waive any objections to personal jurisdiction or venue being laid therein, including any objection based on forum non conveniens.

19.11 Use in the United States and Canada: The Services are controlled and operated by SWIVL from its offices within the United States and is intended only for use by users in the United States and Canada. The Service is not intended to subject SWIVL to any non-U.S. jurisdiction or law. SWIVL makes no representation that the information or materials on or linked through the Services is appropriate or available for use in other locations. If a User chooses to access the Services from other locations, it does so on its own initiative and at its own risk and is responsible for compliance with all applicable laws, rules and regulations in its respective location in doing so.

19.12 Contractual Period of Limitation: Any and all judicial procedures by SWIVL regarding this SWIVL Agreement must be brought within one year of the date the cause of action accrued, but in no event after final payment to SWIVL. This contractual period of limitation takes precedence over any contrary or conflicting statutory provision or rule of law applicable to any claims or disputes which SWIVL may seek to bring. No dispute or controversy shall interfere with the progress of the construction and SWIVL shall proceed with the Services without causing interruption, deficiency or delay. SWIVL shall participate in and be bound by any proceedings which directly or indirectly relate to this SWIVL Agreement (litigation, arbitration, and mediation).

19.13 Force Majeure: SWIVL shall not be liable for delay or default in the delivery or performance of the Services resulting from any cause beyond SWIVL’s reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, fire, epidemic or pandemic, damage or destruction of Goods, declared or undeclared wars, acts of terrorism, manufacturers’ shortages, availability or timeliness of transportation, materials, fuels or supplies, and acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for the initiation of Services provided by SWIVL shall be extended reasonably; (b) the Parties shall adjust all affected dates accordingly; (c) the Service Price shall be adjusted for any increased costs to SWIVL  resulting from such Force Majeure Event; and (d) User shall not be entitled to any other remedy

19.14 Capitalization: Capitalized words or phrases, unless specifically defined herein or understandable in context herein, shall have the meaning as established in the Contract Documents.

19.15 No Inducement: SWIVL warrants that no statement, representation, inducement or promise, oral or in writing, of any kind by Owner, User or Architect, not expressly made a part of the Contract Documents, has induced SWIVL to enter into this SWIVL Agreement.

19.16 Authority to Act: The undersigned represents that it is over the age of 18 years of age, authorized to enter this Agreement on User’s behalf, and acts under no impediment to bind User to this Agreement. 

19.17 Relationship of the Parties: SWIVL and Users are separate and independent entities, and the employee of one of those entities is not an employee of the other entity. We are not an agent of the Users and vice versa. In no event will SWIVL be considered a general contractor, construction manager, project manager, joint employer, joint venturer, or partner of Users or any of its affiliates or their respective personnel.

[need a “click to accept” function in app at account creation]

 

USER SERVICE ADDENDUM

SWIVL SERVICES

SWIVL offers you the use of our mobile and desktop services, which consist of field service management services and tools, subject to our various types and levels of subscription plans, as well as add-ons for additional fees (“Services“).  We also offer Users the ability to process payments and access certain other services through SWIVL, including but not limited to (“Third Party Services”).  Your use of our Service is solely authorized for supporting your business, and for consumers, solely for your personal use.  

 

USE OF THE SERVICE

The Service is offered to Users who are 18 years of age or older and reside in the United States or Canada. Use of the Service is permitted only by individuals who can form legally binding contracts under applicable law. If you do not qualify, do not use the Service. By using the Service, you represent and warrant that you are 18 years of age or older and otherwise meet all eligibility requirements herein. You further represent that all information you provide to us (including any User and employee information) or any of our third-party partners and vendors shall be accurate, and that you shall have all necessary rights to provide and use such information for use as contemplated herein. In addition, you represent and warrant that you will comply with all applicable federal, state and local laws, rules and regulations with respect to your use of the Service.

 

SERVICE DATA YOU PROVIDE 

In using the Service, You may provide us, directly or indirectly, with information about you or your business, including but not limited to the following types of information (which shall be referred to collectively as “User Service Data”):

 

Business Profile – We require Users to complete a profile (“Business Profile”). We do not review or verify the information or representations set forth in Business Profiles.

 

Licenses – Users are requested to post licensing information in their Business Profile. Different jurisdictions may require state and/or local (county or municipal) level licensing for certain services, work, and/or project amounts. SWIVL does not undertake to identify, advise on, or confirm the licensing required for any User to operate in any jurisdiction.

 

Insurance and Bonding – Users may post information and documents concerning insurance policies and/or bonds covering their operations. SWIVL does not verify the accuracy of this information.

 

User Data – Your User Service Data shall remain the property of that User. You grant SWIVL and its affiliates and service providers the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties your User Data as may be necessary to provide the Service to you, for SWIVL’s internal business uses, and any other uses permitted by law, subject to the SWIVL privacy policy, located at www.swivl.tech/privacy. SWIVL may anonymize and aggregate User Service Data, and use such data for its business purposes.

 

Service Pricing Data – Pricing data on a User’s transactions with its own customers that User enters or imports in conjunction with its use of the Service (“User Pricing Data”) shall remain the the User’s property. Unless required by law, SWIVL shall not share User Pricing Data without that User’s authorization. SWIVL may, however, anonymize and aggregate User Pricing Data, and use such data for its business purposes.

 

Feedback – In the event that you provide us with any feedback regarding the Service, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the service or the Service (“Feedback”), you hereby assign to us all rights, including intellectual property rights, in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate.

 

Login information – You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account, including but not limited to any unauthorized transactions involving any hacking or unauthorized access to or use of your account or account information. SWIVL has no liability for any funds paid that were charged from your account or using your credit or debit card information, or paid or transferred to the account or card on file in your SWIVL account. You agree to notify us immediately of any unauthorized use of your account. User is responsible and liable for: (i) User’s conduct; and (ii) any use of the Service through User’s information technology systems or environment, whether authorized or not. We have the right to disable any user name, password, or other identifier, whether chosen by User or provided by SWIVL, at any time if, in our opinion, User has violated any provision of this Agreement.

 

QuickBooks Data – We may have access to financial and transactional data that you provide us via an import from  your Quickbooks account, including data in such an account that is captured before or after your integration with SWIVL.  You authorize us to share your data and information in your Quickbooks account with our third-party providers for the purposes of providing the Services to you. 

 

Geolocation Data – We may have access to certain geolocation data of you and/or your vehicles, obtained from mobile devices including mobile phones and vehicle tracking devices, offered as a service by us.  You acknowledge that you have all necessary consents and rights to convey any and all rights granted hereunder to us. 

 

Payment Processing Information – You may provide certain payment processing information including but not limited to dates, amounts and forms of payments you receive.  Users warrant that all information they provide or submit, including but not limited to Service Data, is complete, accurate and current.

 

USE OF USER SERVICE DATA 

 

License of Your User Service Data – You hereby grant us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, fully paid license (with the right to sublicense) to use, copy, transmit, modify, display and distribute your User Service Data: (i) as necessary to provide the Service; (ii) for internal business purposes; (iii) to evaluate your eligibility to use our Service and Third Party Services, in our sole discretion; (iv) to create and present to you relevant new offerings from SWIVL and our partners, (v) to improve, modify and adapt the Service, and (vi) for any other lawful purpose. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to the User Service Data and any content or materials that you submit to your SWIVL account.

SWIVL’s use under this license is subject to our privacy policy in effect as posted at XXX. Examples of SWIVL’s permitted use of your User Service Data may include, without limitation:

1. 1. Providing relevant data to our Service and third-party providers and applications (“Apps”) that utilize functionality from your account to fulfill their services and evaluate your eligibility for additional services; 
   2. Sending communications on your behalf to effect the intended purposes of the applicable Service, e.g., sending job scheduling emails, sending en-route text notifications, offering your marketing promotions; 
   3. Making your services available on our own and third-party Booking Services that we partner with;
   4. Generating invoices to you and collecting payment thereon; 
   5. Verifying your identity, and preventing fraud or other unauthorized or illegal activity; 
   6. Analyzing and creating anonymized aggregate industry trends and analytics to improve the Service and create new features and offerings; 
   7. Providing User support to you;
   8. Using the names, trademarks, service marks and logos associated with your company to promote the Service; 
   9. Providing you with job applicants potentially looking for jobs in your industry; 
   10. Sending you offers and marketing materials from SWIVL and any of our partners or affiliates that we believe may be of interest to you; and 
   11. Any other use that we, or a third-party App or partner, describe at the point where we collect data or information with your consent. 

 

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Use of Aggregated & Statistical Service Data Rights 

Notwithstanding any other provision of this Agreement, SWIVL shall own all right, title and interest to any anonymized, aggregated and statistical data created, generated and/or derived from the User Service Data you provide and your use of the Service. If SWIVL does not automatically own any anonymized aggregated and statistical data upon its creation, You hereby assign all right, title and interest, including intellectual property rights, in and to such aggregated and statistical data to SWIVL.

We also reserve the right to use any version of your website from our Website Builder service (or any part thereof) for any of our marketing or promotional activities, online or offline, and to modify it as reasonably required for such purposes, and you hereby waive any claims against us or anyone acting on our behalf relating to any past, present or future moral rights, artists’ rights or any other rights you may have in or to such content with respect to such uses.

You hereby grant to SWIVL  a non-exclusive, irrevocable, perpetual, unlimited, worldwide license to use and permit others to use, at no cost, your name, photograph, video and voice (from any recordings you provide or upload, or recordings made by us that include you), statements, likeness, and personal characteristics (“Materials”) in connection with the Company’s business purposes, including but not limited to, advertising and commercial exploitation, in any format now known or hereafter developed at the Company’s sole discretion.  Such uses of the Materials may include, but are not limited to: use on the Company’s website, use on social media, use of Materials within advertising, promotional, and educational communications, use for training, and any other public use in furtherance of the Company’s business purposes. 

 

Franchises – If you are a franchisee, and you subscribe to SWIVL through an offer or or in conjunction with your franchisor, you authorize SWIVL to provide access to your SWIVL account, and all information therein, to your franchisor. You also authorize us to act on, and follow instructions from your franchisor with regard to your account.

 

Customer Service Issues – You are solely responsible for all service issues between you and your customers relating to your services, including pricing, fulfillment, cancellation by you or your customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback, reviews, or ratings concerning experiences with your personnel, policies or processes. In performing services for customers, you will always present yourself as a separate entity from us.

 

PAYMENT PROCESSING TERMS OF SERVICE

You may have the option, at our discretion, of taking advantage of our payment processing offering (“SWIVL Payments”) to process your customers’ payments via credit or debit card or ACH, subject to our approval of your eligibility for such offerings.  Such offerings are subject to certain fees as disclosed to you at the time of sign up. By using SWIVL Payments, you acknowledge and agree that we may use third party payment processors or other service providers (“Third Party Payment Processors”) and that the terms and privacy policies of any such Third-Party Payment Processors are applicable to you. We currently use Stripe as our payment processor. By registering for or using SWIVL Payments, you agree to be bound by the Stripe Services Agreement and Stripe Connected Account Agreement, and any other terms contained therein. SWIVL is not liable for the acts or omissions of any third party, including any Third Party Payment Processor.  See below for additional terms and conditions regarding your access to and use of SWIVL Payments.

 

Card Not Present – You acknowledge that all payment or financial card (“Card”) transactions (except those conducted using card readers provided by us) are processed as “card not present” transactions, even where the consumer is at the physical point of sale and a consumer has different Chargeback rights for “card not present” transactions than for transactions where the buyer physically presents the card to the seller.

 

Underwriting – We will review some or all of the information that you submit in connection with your request to sign up for SWIVL Payments. We may forward such information to Third Party Payment Processors. After you submit your application, we or our payment processor may conclude that you will not be permitted to use the Service.

 

Payment Processing Transaction and Account Reviews – From time to time, and in our sole discretion, we review account and transaction activity, including when bank transfers are initiated, to evaluate your eligibility, or continued eligibility, to access our processing and other financial related product offerings. This review checks for, among other things, suspicious or illegal activity, and whether your account activity and the activity of users with whom you’ve transacted comply with this Agreement. In connection with our review process, you may be required to provide us with additional information and/or documentation to verify your identity, business information, or financial standing. We also may obtain information from third parties, including but not limited to consumers and banks, and we may contact your customers to obtain relevant information. We may limit your account and your access to money in it or that is sent to you until verification is completed.

Our Reviews may result in:

• delayed, blocked or canceled transfers;
• money or payments being held by us;
• money or payments being applied to amounts you owe to us or used to offset loss incurred by us;
• account limitation, suspension or termination;
• money or payments being seized to comply with a court order, warrant or other legal process; and/or
• money or payments you previously received being reversed (i.e., sent back to the sender or to the card or bank account that was used to fund the payment).

 

Among other reasons, we may take the above actions if you knowingly or unknowingly were a participant in a payment that was made from a stolen card, compromised bank account, or compromised SWIVL account, or if you were a participant in a transaction for goods and services between two personal accounts.

 

Transaction Limits – We may impose various transaction limits and rules on Users. If you believe that the transaction limits are interfering with your business, please contact our support to request higher limits. We may require more information about your business to evaluate your request and will decide at our sole discretion whether to honor such requests. We will consider a variety of factors in making our decision, including but not limited to a proprietary set of rules, Chargeback rates, transaction behavior, and other supplemental data about your business.

 

Restrictions on Certain Transactions – You may not use Card transactions for activities unrelated to the activities described in your Business Profile. Without limiting the generality of the foregoing, you may not use Card transactions for shipping products, for selling products not related to on-site work in the business described in your Business Profile, for making or receiving payments on loans, for cash advances, or for transactions involving motor vehicles.

 

Payment Processing Fees – You agree to pay payment processing or other transaction-related fees (“Fees”) in addition to our subscription fee. We reserve the right to change our Fees at any time in our sole discretion.

 

Access to Your Funds – We will deposit to your bank account (defined as the bank account as specified in your SWIVL account) the amounts actually received by us for transactions submitted through the Service, less any applicable Fees and any money that you owe SWIVL. We reserve the right to revise our payout schedule. Once your US bank account information is verified, we will automatically initiate a payout to your designated bank account at the end of every business day except as provided below. Payouts to your bank account will normally register within 2-3 business days subject to your bank’s policies. We may offer you the ability to direct funds to multiple accounts. 

Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when we or the designated financial institutions have accepted the transaction or funds. We will attempt to rectify processing errors that we discover, and may withhold funds pending our investigation of any such errors. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history, and failure to do so will be deemed a waiver of any right to amounts owed to you. However, notification within such sixty (60) day period does not ensure that any such error will be able to be corrected. 

 

Restrictions on Availability of Funds – Should we need to conduct an investigation or resolve any suspicious activity or pending dispute related to your account, we may delay payout or restrict access to your funds for the entire time it takes for us to do so. We also may delay payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entities.

 

Chargebacks – The amount of a transaction may be reversed or charged back to your bank account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Associations (defined below), our processor, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement.

There is a non-refundable $25 fee for each Chargeback regardless of the outcome of the dispute.

 

Contesting Chargebacks; Our Collection Rights for Chargebacks.

For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve (defined below). In the event a consumer charges back a payment that we have processed and caused funds to be delivered to your account, our payment processor Stripe may withhold or take back such amounts while the charge is in dispute.  In such event, if your account does not have sufficient funds, we may be required to advance such funds to Stripe on your behalf. If this occurs, you agree that we are entitled to be reimbursed by you immediately, and that your sole remedy lies with your User and your User’s bank. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by the card-issuing bank or organization (“Card Association”) or our processor from your bank account (including without limitation any Reserve), from any proceeds due to you, your bank account, or from any other payment instruments registered with us. If you have pending Chargebacks, we may delay payouts to your bank account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that (a) a Chargeback is assessed due to a User’s complaint, in which case we will retain the funds, (b) the period of time under applicable law or regulation by which the User may dispute that the transaction has expired or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all the Users account deficit balances unpaid by you.

Any bank account or Card information may be held by SWIVL in order to satisfy any account balances, disputes, refunds, Chargebacks or other liabilities or obligations after leaving or terminating the Service.

 

Excessive Chargebacks – If we determine, in our sole discretion, that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your account, including without limitation, by (a) establishing new processing Fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts and (d) terminating or suspending your access to the Service.

 

Reserve – If we have reasonable suspicion of misuse, we may temporarily suspend or delay payments to you and/or designate an amount of funds that we must maintain in a separate reserve account (a “Reserve”) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks or refunds, or other indications of performance problems related to your use of the Service. The Reserve will be in an amount as reasonably determined by us to cover anticipated Chargebacks, returns, unshipped merchandise and/or unfulfilled products or services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in our favor, or otherwise as we or our processor may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your account, including but not limited to any funds (a) due to you under this Agreement or (b) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your bank account.

 

Taxes – Withholding – You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with your use of our Service (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. If in a given calendar year you receive more than $600 in gross amount of payments, we will report annually to the Internal Revenue Service (“IRS”), as required by law, your name, business name, address, Tax Identification Number the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year. It is your responsibility to ensure that your business name and Tax Identification Number as provided to SWIVL are accurate and up to date.  

 

Refunds and Returns – You agree to process returns, and provide refunds and adjustments, for your goods or services through your SWIVL account in accordance with these terms and any applicable Card Association Rules. Card Association Rules may require that you will (a) maintain a fair return, cancellation or adjustment policy, (b) disclose your return or cancellation policy to Users at the time of purchase, (c) not give cash refunds to a User in connection with a Card sale, unless required by law and (d) not accept cash or any other item of value for preparing a Card sale refund. You are responsible for knowing and adhering to the Card Association Rules applicable to you, and SWIVL will not be liable for any violation by you of the Card Association Rules. The amount of the refund/ adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the User for postage that the User paid to return merchandise. If you accept returns and are making an uneven exchange of merchandise (e.g., the sales price is not the same), you must issue a credit for the total amount of the merchandise being returned and complete a new sale for any new merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the buyer, you may still receive a Chargeback relating to such sales. You can process a refund through your account up to sixty (60) days from the day you accepted the payment. If the balance in your account is insufficient to cover the refund, we will withdraw up to the requested refund amount from your bank account and credit it back to your User’s Card. Transaction Fees are also refunded, so the full purchase amount is always returned to your User. We have no obligation to accept any returns of any of your goods or services on your behalf.

 

Account History – We provide you an online transaction history of all of your authorized transactions. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your account and your use of the Service and (b) reconciling all transactional information that is associated with your account.

 

RELATED FINANCIAL SOLUTIONS TERMS OF SERVICE

You have the option of taking advantage of related financial products and services offered through the Service (each a “Financial Solution”). Such offerings are subject to certain fees as disclosed to you at the time of sign up. By using Financial Solutions, you acknowledge and agree that we may use third party technology and service providers (“Third Party Financial Partners”) and that the terms and privacy policies of any such Third Party Financial Partners are applicable to you. SWIVL is not liable for the acts or omissions of any third party, including any Third Party Financial Partners. See below for additional terms and conditions regarding your access to and use of Financial Solutions.

 

SWIVL Spend Card – SWIVL Expense Card is a business charge card and financial account made available through the use of Third Party Financial Partners. Currently, SWIVL Spend Card uses Stripe for card issuing and for the provisioning and maintenance of financial accounts. By using SWIVL Spend Card, you agree to be bound by the following agreements: the Stripe Treasury Agreement, the Stripe Spend Card Program Agreement, and the E-SIGN Disclosure. You are responsible for all charges made using your SWIVL Spend Cards. 

NOTE: We may request that Third Party Financial Partners establish accounts for you to enable the provision of payment processing and other Financial Solutions, including accounts for Financial Solutions which you are not currently using, but for which you may be or become eligible. Such accounts will not become fully activated for you until you request such access and re-affirm your agreement to the applicable partner terms and conditions. If you wish not to have any Financial Solutions enabled on your behalf, you may submit a request in writing via email to account-services@swivl.tech with such request and, within 10 business days of receipt, any such accounts enabled on your behalf that you are not currently using will be closed and no further such accounts will be enabled on your behalf. If you do not fully activate an account for a Financial Solution enabled on your behalf within six (6) months of such Financial Solution being enabled, we may close the account at our sole discretion. SWIVL is not liable for the acts or omissions of any third party, including any Third Party Financial Partners.

 

Consumer Financing – SWIVL does not provide consumer financing, but may partner with a Third Party Financial Partner through which you may access their consumer financing offerings. When you apply for financing through such Third Party Financial Partners, you understand and agree that we may share information about your business, including processing and payment history, with such Third Party Financial Partner. You acknowledge and agree that any such consumer financing is provided solely by such Third Party Financial Partner, and SWIVL has no obligations or liability to you or your Users with regard to any offerings from, or your dealings with, such Third Party Financial Partner.

 

Swivl Vault – Swivl Vault is a financial account made available through the use of Third Party Financial Partners. Currently, Swivl Vault uses Stripe for the provisioning and maintenance of financial accounts. By using Swivl Vault, you agree to be bound by the Stripe Treasury Agreement.

If your account sustains a negative balance, you agree that we are entitled to be reimbursed by you immediately, and you agree that SWIVL is authorized to redirect funds from payments directed to you and/or withdraw funds from your connected bank account in the amount of such negative balance.

From time to time, and in our sole discretion, we review account and transaction activity, including when bank transfers are initiated, to evaluate your eligibility, or continued eligibility, to access our processing and other financial related product offerings. These reviews may result in:

• The permanent or temporary freezing of all activity related to your Swivl Vault account
• Loss of eligibility for the Swivl Vault account
• Cancellation of cards associated with your Swivl Vault account

 

INTELLECTUAL PROPERTY AND WEBSITE CONTENT

Ownership – We or our licensors or partners own the intellectual property rights in the content and materials displayed on Our Website(s), including but not limited to any materials to which you have access via your use of Conquer services (“Site Content”). You may use Our Website(s) (including any Site Content) for your own personal, non-commercial use, but you may not use it for commercial purposes. You may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any Site Content unless explicitly authorized in these Terms of Service or by the owner of the materials. You may, however, from time to time, download and/or print one copy of individual pages of Our Website for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.

 

Domain Name – The Service will allow you to set up a website through which you may advertise and offer your services or goods (“Website”). If you own and wish to use an existing domain name for your Website, instructions are provided to purchase your domain name and transfer hosting to Swivl.

 

Copyright – We respect the intellectual property rights of others and act in accordance with the Digital Millennium Copyright Act (“DMCA”). If you believe that any of your work has been copied or was otherwise used in a way that constitutes copyright infringement, please immediately notify our designated Copyright Agent using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please include the following information in writing to our designated Copyright Agent: (a) a physical or electronic signature and the contact information of the person authorized to act on behalf of the owner of the copyright, (b) a description of the copyrighted work you claim has been infringed, (c) a description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit us to locate the material (including the URL address), (d) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law, and (e) a statement that the information in the Notification is accurate, and, under penalty of perjury, a statement that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed. Please be advised that pursuant to federal law you may be held liable for damages if you make a material misrepresentation in the Notification. Thus, if you are not certain that your copyright has been infringed, you should consider consulting an attorney.

Our Copyright Agent can be reached at the following address:

2870 Peachtree Rd., NW, Ste 193, Atlanta, GA 30305

Attention: Copyright Agent

Email: rwofford@carrollweiss.com

If you believe your own copyrighted material has been removed as a result of a mistake or misidentification, you may submit a written counter notification to our designated Copyright Agent using the contact information provided above (“Counter Notification”). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following: (a) identification of the information that has been removed or disabled and the location at which the material appeared before it was removed or disabled, (b) a statement that you consent to the jurisdiction of the U.S. Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located, (c) a statement that you will accept service of process from the party that filed the Notification or the party’s agent, (d) your name, address and telephone number, (e) a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, and (f) your physical or electronic signature.

If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material, unless we first receive notice from the party filing the Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question. Please note that if you materially misrepresent that the disabled content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney’s fees.

 

Materials You Provide – You are responsible for all content you provide to SWIVL in connection with your Website, including photos, images, graphics, written content, audio files, or other information or data (the “Materials”). We do not claim any intellectual property rights over the Materials other than the domain name you provide to populate your Website. All Materials you upload remain your property. You can remove the Materials and your Website at any time by deleting your account.

By uploading your Materials, you agree (a) to allow other Internet users to view the Materials you post publicly to your Website, (b) to allow SWIVL to store, and in the case of Materials you post publicly, to display the Materials, and (c) that SWIVL can at any time review any of the Materials although SWIVL is not obligated to do so.

You are responsible for ensuring that your Materials and the content shown on your Website do not violate any law or regulation, do not violate any rights of any third party, including any privacy rights, and do not infringe upon any intellectual property rights of any third party.

Your SWIVL account is not intended to be used for storing sensitive data, including but not limited to consumer credit card or bank account information.  You should not store such data in your SWIVL account, and you acknowledge and agree that SWIVL is not responsible for any storage of such information in your SWIVL account. 

 

ACCEPTABLE USE OF OUR SERVICE

Certain uses of our Service are inconsistent with our mission to improve the experience of our Users. The following activities are prohibited:

1. 1. Child exploitation: You may not post or upload Materials that exploit or abuse children, including but not limited to images or depictions of child abuse or sexual abuse, or that present children in a sexual manner.
   2. Harassment, bullying, defamation and threats: You may not post or upload Materials that harass, bully, defame or threaten any person.
   3. Hateful content: You may not use the Service to promote or condone hate or violence against people based on race, ethnicity, color, national origin, religion, age, gender, sexual orientation, disability, medical condition, veteran status or other forms of discrimination. You may not use the Service to promote or support organizations, platforms or people that: (i) promote or condone such hate; or (ii) threaten or condone violence to further a cause.
   4. Illegal activities: You may not post or upload Materials that violate any applicable laws.
   5. Privacy or Intellectual property: You may not post or upload Materials that infringe on the privacy or intellectual property rights of others.
   6. Obscene or offensive content: You may not post or upload any Materials that we find in our sole discretion to be obscene, indecent or offensive in any way.
   7. Malicious and deceptive practices: You may not use the Service to transmit malware or host phishing pages. You may not perform activities or upload or distribute Materials that harm or disrupt the operation of the Service or other infrastructure of SWIVL or others, including any of our third party providers. You may not use the Service for deceptive practices or activities.
   8. Personally identifiable or confidential information: You may not post or upload any Materials that contain personally identifiable information, sensitive personal information, or confidential information, such as credit card numbers, or account passwords unless you have consent from the person to whom the information belongs or who is otherwise authorized to provide such consent.
   9. Self-harm: You may not offer goods or services, or post or upload Materials that promote self-harm.
   10. Spam: You may not use the Services to transmit unsolicited commercial electronic messages.
   11. Terrorist organizations: You may not offer goods or services, or post or upload Materials that imply or promote support or funding of, or membership in, a terrorist organization.
   12. Service Bureau: You may not, directly or indirectly, use any of our Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, other than as specifically authorized herein;

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We may, at any time and without notice, remove any Materials, and suspend or terminate your Account or your access to the Service if you engage in activities that violate this Agreement. 

 

SMS NOTIFICATION, CHAT, AND PHONE NUMBER

Default and Company-Specific Notification Phone Numbers – We may provide a default notification phone number for your business. You will be able to, and may be required to, add a company specific phone number feature for an additional monthly charge, at SWIVL’s discretion, if your SWIVL subscription includes access to the feature. You may be able to choose the area code in which the company specific phone number is located. This number cannot be changed once it is chosen. Based on your configuration of the Services, job related notifications will be sent to your Users from the applicable above phone number when notifications are turned on. Users will not be able to respond to messages that you send from the default number. You agree that you are the sender of these communications, not SWIVL, and that you have obtained all necessary consents from the recipients of such text messages to receive such text messages. You also agree that SWIVL is not liable to you, your employees or independent contractors, or your potential or actual Users for any such communications. You further agree that you will indemnify, defend and hold harmless SWIVL from any claims that these communications violate any federal or state law or regulation.

 

Notification Phone Number Transferability – Company-specific notification phone numbers are not transferable. Your company specific notification phone number will be held for ninety (90) days after you cancel your subscription.

 

Restrictions and Limitations – If we have reasonable suspicion of misuse, we may temporarily suspend or deactivate your phone number functionality for any period of time, in our sole discretion. 

 

COMMUNICATIONS ON YOUR BEHALF

In the event you instruct or authorize SWIVL to communicate to third parties on your behalf (including your customers), whether via telephone calls, SMS messaging, emails or otherwise, you hereby represent and warrant that you and SWIVL are authorized to engage in such communications, that you shall be deemed to be the sender or originator of such communications, and that such communications shall comply with all applicable laws, rules and regulations, including but not limited to the Telephone Consumer Protection Act, the Telemarketing Sales Rule, CANSPAM, and Federal, State and internal Do-Not-Call lists, and any applicable privacy laws and regulations. 

 

BOOKING SERVICES

SWIVL offers the ability for customers to book your services, interact with you during your services, receive information on your work progression, sign-off on your services, and pay for your services through the Swivl booking feature and website, and other third-party booking services (collectively “Booking Services”). Consumers can utilize Booking Services functionality at job inception by ordering through a Booking Services provider, or after the job has started by linking a consumer Swivl account to a job that is transacted for them.

 

Booking Services Data – Consumers of Booking Services have the ability to order and transact service work through a Booking Services provider. Consumers on those platforms have the right to access and use service work data for all services performed on properties they own within SWIVL service records. Consumers may be able to create an account with the Booking Services provider and are additionally subject to the terms and conditions of the Booking Services provider.

 

Booking Services Referral Fees – We may charge a referral fee for each job from a Booking Services Consumer. The rates for this fee shall be disclosed upfront and are subject to change.

 

SWIVL PRODUCTS AND SERVICES

SWIVL offers all of its products, services and content on an “as-is” basis.  This includes any products, services or content including but not limited to those relating to booking, scheduling, invoicing, job pricing, payroll processing, coaching, Service Plans and agreements, training, virtual assistant, websites, ratings, inventory, parts ordering, sales proposals, blog posts, and social media posts. We may change terms, including pricing, for any products or services, and discontinue any products or services, including Third-Party Services, upon prior notice to you. 

 

Service Plans – Service plans (“Service Plans”) provide you with the opportunity to offer your customers service plans on your behalf for recurring services, including automatic recurring billing and charging of your customers’ payment method. You represent and warrant to us that you have obtained all necessary consent from your customers for whom you indicate acceptance of a Service Plan, and that you will comply with all applicable laws and regulations regarding such Service Plans, including but not limited to providing applicable auto-renewal notifications.  You agree to indemnify, defend and hold us harmless from any claims from consumers that charges pursuant to a Service Plan were not authorized.  

 

Payroll Processing – If you elect to receive payroll processing services from SWIVL (“Payroll Processing Services”), such services are provided by a third-party partner (“Third-Party Payroll Processor”).  You agree that we may share any payroll related information regarding your account, your business and your employees, directly to our Third-Party Payroll Processor, that you authorize us to share such information, and that we are not responsible for any acts or omissions of our Third-Party Payroll Processor, or their use of your information.  You represent and warrant that you have all necessary consents and authorizations to provide any of the foregoing information to us and to our Third-Party Payroll Processor. You further agree that you are solely responsible for ensuring that all the information you submit relating to payroll processing shall be accurate and up to date. Your relationship with our Third-Party Payroll Processor is governed by our Third-Party Payroll Processor’s terms. By registering for or using SWIVL Payroll Processing Services, you agree to be bound by such terms, and any other terms contained therein. SWIVL is not liable for the acts or omissions of any third party, including any Third-Party Payroll Processor.

 

Job Inbox 

Beta Testing – You may from time to time be invited to participate in the alpha or beta testing of a new proposed product or service (“Beta Product”), which may be free, or for which there may be fees.  Unless you enter into a separate beta agreement with regard to any such Beta Product, you acknowledge and agree that: (a) the Beta Product is not an official product and has not been commercially released for sale by SWIVL; (b) the Beta Product is provided “as is”, and may not operate properly or be fully functional; (c) the Beta Product may contain errors, design flaws or other problems; (d) use of the Beta Product may result in unexpected results, loss of data or communications, or other unpredictable damage or loss; and (e) SWIVL has the right to abandon development of the Beta Product at any time and without any obligation or liability to you. You are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Beta Product. 

 

Forms and Templates – We may offer or provide access to certain forms or templates as part of the Services (“Forms”).  These Forms are provided for information purposes only, and do not constitute legal, tax, accounting or business advice.  While such Forms may assist you in complying with applicable laws and regulations, it is solely your responsibility to ensure that your business complies with all applicable laws and regulations. SWIVL makes no representations about such Forms. You should consult with appropriate professionals before using any such Forms.  

 

INDEMNIFICATION

Consistent with XX, you shall indemnify SWIVL for any third-party claims based on your use of the Services described herein, including all Third Party Services. Your indemnification of SWIVL includes, but is not limited to, any third-party claims arising from:

• Your breaches of any representations or warranties associated with your use of the Services; 
• Any inaccuracies in the Uservice Service Data or User Pricing Data that you provide to SWIVL or others;
• Any Customer Service issues; 
• Any unauthorized or illegal use of SWIVL Payments; 
• Your use of any Third Party ‘financial Partners, including Stripe; 
• Your use of the SWIVL Spend Card; 
• Your use of or provision of content to, your Website Content; 
• SWIVL’s Communications on Your Behalf; 
• Your use of the Banking Services; 
• Any Service Plans you engage in with your customers; and
• Your use of any Third-Party Payroll Processor.

 

INTERACTIONS AND DISPUTES WITH CONSUMERS

No Warranty or Endorsement of User Services – WE DO NOT ENDORSE OR RECOMMEND THE SERVICES OF ANY PARTICULAR PROVIDER. THE DECISION TO ENTER INTO AN AGREEMENT FOR WORK BELONGS ENTIRELY TO THE USER. WE DO NOT WARRANT USERS’ PERFORMANCE ON THE JOB OR THE QUALITY OF GOODS, MATERIALS, EQUIPMENT OR SERVICES FURNISHED BY USER OR ANY PROVIDER. WE DO NOT CONTRACT FOR OR PERFORM, AND ARE NOT RESPONSIBLE FOR, ANY OF THE SERVICES REQUESTED BY THE CONSUMER IN THE SERVICE REQUEST. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY USERS OR THE USERS ABILITY TO PROVIDE A SERVICE COMPLIANT WITH THE CONSUMER’S SERVICE REQUEST. YOU EXPRESSLY ACKNOWLEDGE THAT WE MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE QUALITY OF SERVICES RENDERED BY ANY USER OR SERVICE PROVIDER.

 

Relationship Between Users and Consumers – USERS ARE SOLELY RESPONSIBLE FOR THEIR INTERACTIONS WITH CONSUMERS. CONSUMERS’ RIGHTS UNDER CONTRACTS A CONSUMER ENTERS INTO WITH USERS ARE GOVERNED BY THE TERMS OF SUCH CONTRACTS AND BY APPLICABLE FEDERAL, STATE, PROVINCIAL AND LOCAL LAWS. YOU ACKNOWLEDGE THAT YOU WILL ADDRESS ANY DISPUTE WITH YOUR CUSTOMERS DIRECTLY, AND WE ARE NOT A PARTY OR THIRD- PARTY BENEFICIARY TO THE CONTRACTS BETWEEN CONSUMERS AND YOU. YOU EXPRESSLY AGREE THAT SWIVL IS ENTITLED TO BE REIMBURSED FROM ANY MONEY OWED TO YOU, OR IN YOUR ACCOUNT, IN THE EVENT SWIVL IS REQUIRED TO ADVANCE FUNDS ON YOUR BEHALF DUE TO A CONSUMER CHARGING BACK A CREDIT CARD PAYMENT PROCESSED BY SWIVL AND PAID TO YOU. YOU AGREE TO FULLY COOPERATE IN THE EVENT WE RECEIVE A COMPLAINT FROM A CONSUMER ABOUT YOU OR YOUR SERVICES.