THESE TERMS INCLUDE A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER PROVISION, WHICH AFFECT YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH SWAPTION LLC RESULTING FROM ACCESSING OR USING OUR WEBSITE, APPLICATIONS OR OTHER PRODUCTS OR SERVICES (TOGETHER, THE “SWAPTION SERVICE”). BY VIEWING THE CONTENTS OF THIS WEBSITE, REGISTERING FOR A SWAPTION ACCOUNT, AND/OR TRANSACTING A “SWAP” ON THE SWAPTION MARKETPLACE PLATFORM YOU AGREE TO BE BOUND BY ALL TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE (“TERMS”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT VIEW THE CONTENTS OF THE WEBSITE NOR USE THE SWAPTION SERVICE.
YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED MARKETPLACE AND INTERACTING WITH OTHER USERS IN PERSON AS OUTLINED IN SECTION 17. YOU ASSUME ALL RESPONSIBILITY FOR: VERIFYING THE ACTUAL VALUE OF AN ITEM YOU WISH TO RECEIVE IN A “SWAP;” THE LOSS INCURRED IN THE EVENT THE ITEM IS NOT AS THE ACCOUNT HOLDER REPRESENTS IT TO BE, SWAPPED ITEMS WHICH ARE DAMAGED OR NOT DELIVERED; THE PERSONAL SAFETY OF INDIVIDUALS WHO “SWAP” ITEMS IN PERSON; LOSS ASSOCIATED WITH A COMMUNICATION OR TRANSACTION CONDUCTED THROUGH THE SWAPTION WEBSITE OR OVER THE SWAPTION VIRTUAL MARKETPLACE (COLLECTIVELY “RISKS”). SWAPTION TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY SUBMISSION POSTED BY YOU OR ANY THIRD PARTY. SWAPTION DISCLAIMS ALL LIABILITY FOR ALL DAMAGE OR LOSS YOU INCUR AS A RESULT OF THESE RISKS OR ANY OTHER LOSS YOU INCUR; AND BY USING SWAPTION, YOU WAIVE ALL RIGHT TO PURSUE DAMAGES OR ANY LOSS YOU INCUR WHILE USING SWAPTION.
WCAG AND ADA COMPLIANCE: BY ACCESSING THIS SITE YOU ACCEPT THAT SWAPTION WILL MAKE A GOOD FAITH EFFORT TO CONFORM THIS SITE TO THE MOST COMMONLY USED, COMMERCIALLY ACCEPTABLE WEB CONTENT ACCESSIBILITY GUIDELINES (“BUT AT NO TIME WILL THE SITE BE ACCESSIBLE TO ALL PEOPLE AT ALL TIMES REGARDLESS OF THEIR ACCESSIBILITY NEEDS”). USER AGREES THAT IN THE EVENT USER BELIEVES (A) THIS WEBSITE IS NOT REASONABLY ACCESSIBLE TO USER; OR (B) THIS WEBSITE DOES NOT MEET THE STANDARD SET FORTH UNDER (i) THE MOST COMMONLY USED VERSION OF WCAG, (II) AMERICANS WITH DISABILITIES ACT (III) SECTION 508 OF THE U.S. REHABILITATION ACT OF 1973 (IV) FAIR HOUSING ACT (V) AODA (Canada) OR (VI) IS5568 (Israel), USER’S SOLE RECOURSE IS TO NOTIFY SWAPTION AT THE FOLLOWING LINK firstname.lastname@example.org AFTER WHICH SWAPTION SHALL HAVE 15 BUSINESS DAYS FROM THE DATE OF NOTICE TO, AT ITS SOLE DISCRETION, EITHER MEET THE THEN MOST COMMONLY USED VERSION OF WCAG, REMOVE THE INACCESSIBLE MATERIAL FROM THE WEBSITE, OR WORK DIRECTLY WITH THE USER TO PROVIDE THE INFORMATION AND/OR SERVICES BY OTHER MEDIUM. USER AGREES TO HOLD HARMLESS SWAPTION FROM ANY THIRD-PARTY CONTENT ON THE WEBSITE THAT IS HARMFUL, INACCESSIBLE TO THE USER, OR UNLAWFUL. USER HEREBY WAIVES SWAPTION’S LIABILITY FOR ANY INACCESSABILITY OF THIRD-PARTY CONTENT.
Note: From time to time Swaption introduces new features that may only be available to certain users. Provisions of these Terms of Service relating to such new features, including, at the present, the electronic payments and fulfillment solutions, may not apply to all users.
ONLY USERS WHO ARE EIGHTEEN (18) YEARS OF AGE OR OLDER MAY REGISTER FOR OR USE THE SWAPTION SERVICE. The Swaption Service is not targeted towards, nor intended for use by, anyone under the age of eighteen (18). You further represent and warrant that you: (a) have not previously been suspended or removed from using the Swaption Service; (b) are legally permitted to, and do, live in the United States or one of its territories, and (c) may enter into this agreement without violating any other agreement to which you are a party. If you are registering to use the Swaption Service on behalf of a legal entity, you further represent and warrant that (i) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization, and (ii) you are duly authorized by such legal entity to act on its behalf.
2. Account Registration and Security Responsibilities
In order to access certain parts of the Swaption Service, you will be required to create a Swaption account (an “Account”) or a payment account (“CardConnect Account”) with CardConnect FL, Inc. (“CardConnect”). In connection with creating an Account or a CardConnect Account, you must provide certain information (“Registration Data”) and answer all questions or fields marked “required.” You agree to: (a) provide true, accurate, current and complete Registration Data; (b) maintain and update such Registration Data to keep it true, accurate, current and complete; (c) maintain the security of your Account and the CardConnect Account, including by maintaining the security and confidentiality of your login credentials; and (d) consent to allow Swaption to contact you for the purpose of confirming some or all of your Registration Data, to conduct research and to resolve disputes, as Swaption may elect to do from time to time.
3. Transactions Between Account Holders. Trade Payments Determined by Account Holders.
An Account Holder offering a good or service may, by mutually acceptable agreement with another Account Holder offering a good or service, elect to transact a swap by trading goods/service with one another. The consideration exchanged between the account holders are made directly between them when they either (1) meet in person to complete their swap, pursuant to terms they determine; or (2) agree through the Swaption website or cellular application to ship said goods or deliver services to each other. Swaption is not responsible for authenticating the value, possession or legitimacy of an Account Holder or his/her goods or services. Swaption is not a party to swap transactions, and does not facilitate transactions, refunds or returns in any manner. When you initiate a trade through Swaption, the Account Holder conveying the good or service processes the Electronic Payment Method/processing remitted by the Account Holder receiving the good or service using CardConnect’s payment processing service for service fees. Swaption is not a party to the swap completed using the Swaption Platform. Swaption disclaims any and all responsibility to authenticate, facilitate, or enforce transactions, except to provide a platform interface through which you can seek negotiate and participate in a swap. Swaption further disclaims any and all responsibility to provide refunds or returns in any manner.
A. Processing Fees. If you process a swap on the Swaption platform you are also agreeing to the CardConnect Terms of Service (collectively, the “CardConnect Services Agreement”). Notwithstanding anything to the contrary in the CardConnect Services Agreement, you will not have the right to have CardConnect, and will not request that CardConnect, transfer any Account Holder data it collects via the Swaption Platform to an alternative payment processor. Except for the foregoing restriction that supersedes any rights you may have in the CardConnect Services Agreement, you agree that CardConnect is a third-party provider, and the CardConnect Services Agreement is separate from these Terms. Swaption is not a party to the CardConnect Services Agreement and will not be liable or responsible for the payment services provided by CardConnect. If CardConnect discontinues providing services in connection with the Swaption Platform, you authorize CardConnect to share your payment method information with an alternative third-party payment processor that is or will be integrated into the Swaption Platform.
B. Account Holder Transaction Fees. You agree to pay the Transaction service fees (“Service Fees”) for the swap transactions you make using the Swaption Platform. The Service Fees include Electronic Payment Method processing fees to CardConnect and Transaction service fees to Swaption. Swaption reserves the right to change the Service Fees from time to time.
C. Receiving Goods in Trade. Upon completion of a trade in which the receiving Account Holder uses the Swaption Platform, if you have not previously set up a CardConnect Account, then you must set up a CardConnect Account in accordance with the requirements specified by CardConnect to submit the service fees via the Swaption Platform. CARDCONNECT MUST ACCEPT YOUR APPLICATION TO USE THE SWAPTION PAYMENT SOLUTION BEFORE YOU CAN RECEIVE TRADES VIA THE SWAPTION PLATFORM/SERVICE. IF CARDCONNECT REJECTS YOUR APPLICATION OR YOU FAIL TO SET UP A CARDCONNECT ACCOUNT WITHIN 90 DAYS AFTER COMPLETION OF A SALE PROCESSED BY CARDCONNECT THROUGH THE SWAPTION Platform, THEN CARDCONNECT MAY DISABLE OR LIMIT YOUR ABILITY TO RECEIVE TRADES VIA THE SWAPTION PLATFORM/SERVICE.
D. Acceptable Use Violations. YOUR RIGHT AND/OR ABILITY TO RECEIVE TRADES VIA THE SWAPTION PAYMENT SOLUTION MAY BE REVOKED, DISABLED OR LIMITED IF THE PURCHASE OR SALE VIOLATES SECTION 7 (ACCEPTABLE USE) OF THESE TERMS, INCLUDING FOR SALES THAT VIOLATE THE PROHIBITED ITEMS GUIDELINES.
E. Transactions Final. Regardless of the payment/consideration method chosen, ALL PURCHASES ARE FINAL, AND THERE ARE NO REFUNDS, UNLESS YOU AND THE OTHER ACCOUNT HOLDER IN YOUR TRANSACTION OTHERWISE AGREE AND MAKE ARRANGEMENTS FOR A REFUND. Swaption will not be responsible for facilitating refunds.
F. Taxes. It is your responsibility to determine what, if any, taxes apply to each transaction you complete via the Swaption Service, including, for example, sales, use, value added, and similar taxes. It is also your responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities. Swaption is not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from any transaction you complete via the Swaption Service.
From time to time, Swaption may, in its sole discretion, recommend a third party to allow an Account Holder(s) to ship purchased items to Account Holder(s). Swaption is not a party to transactions conducted between Account Holders, or to the shipping of items from Account Holder(s) to Account Holder(s). Swaption will not be liable for, and you release us from any liability to you for, any losses, damages, or delays related to shipping. You agree not to use any mail service accessible through Swaption shipping service to mail or cause to be mailed, or ship or cause to be shipped, any item purchased and sold through Swaption in a manner that violates the law and/or United States Postal Service or shipping regulations, including but not limited to U.S. Postal Service Publication 52. You further warrant that any item you mail or ship contains no weapons, ammunition, explosives, living or infectious biological matter, human remains, pornography, alcohol, prescription drugs, illegal drugs, currency, dangerous goods, hazardous goods, or other goods that may not be shipped or mailed by law. As an Account Holder, you assume full responsibility for compliance with all applicable laws and regulations, including those regarding mailing and shipping. Anyone who sends, or causes to be sent, a prohibited, illegal, or improperly packaged or labeled material can be subject to legal penalties such as civil penalties, fines and/or imprisonment, including but not limited to those specified in 18 U.S.C. § 1716 and 39 U.S.C. § 3018.
A. Offering Account Holder. From time to time, Swaption may, in its sole discretion, permit certain Account Holders offering goods or services to post their items for trade. In such case, Account Holder will be charged a swap fee for any trade or swap that results in an item being traded or swapped for consideration. Account Holders who choose to post must ship their items in accordance with Swaption’s Shipping Policy. When an Offering Account Holder accepts a Receiving Account Holder’s offer to trade an item to be shipped, the Offering Account Holder must provide a tracking number and mail the item within 3 days of acceptance of the offer. Offering Account Holder is solely responsible to pay the cost and facilitate shipping of an item being Swapped. However, nothing prohibits the Offering Account Holder from including the cost of shipping in the Swapped item post disclosure and providing such cost is clearly disclosed in the offer to the Receiving Account Holder. Offering Account Holders can cancel an offer to swap an item up until the Receiving Account Holder has accepted the offer. When Account Holder offers and/or accepts an offer to swap, Swaption will charge or put a hold on the accounts of the respective Account Holders’ method of payment on file, pending delivery of the item.
B. Receiving Account Holders. From time to time, Swaption may, in its sole discretion, permit certain Account Holders offering goods or services to post their items for trad. In such case, Account Holder will be charged a posting fee for any trade or swap that results in an item being traded or swapped for consideration. Account Holders who choose to post must ship their items in accordance with Swaption’s Shipping Policy. When a Receiving Account Holder accepts an Offering Account Holder’s offer to trade an item to be shipped, the Receiving Account Holder must provide a tracking number and mail the item within 3 days of acceptance of the offer. Receiving Account Holder is solely responsible to pay the cost and facilitate shipping of an item being Swapped. However, nothing prohibits the Receiving Account Holder from including the cost of shipping in the Swapped item providing such cost is clearly disclosed in the offer to the Offering Account Holder. Offering Account Holders can cancel an offer to swap an item up until the Receiving Account Holder has accepted the offer. When Account Holder offers and/or accepts an offer to swap, Swaption will charge or put a hold on the accounts of the respective Account Holders’ method of payment on file, pending delivery of the offered item.
5. Terms of Sale for Swaption’s Paid Services.
From time to time, Swaption may make certain services available for a fee in connection with the Swaption Service (“Paid Services”). The following terms of sale apply solely to your purchase of Paid Services from Swaption.
A. Fees. Unless otherwise agreed upon by Swaption in writing, the fees payable in connection with any Paid Services (“Fees”) will be specified via the Swaption Service. All Fees are denominated in U.S. dollars and are exclusive of any applicable taxes.
B. Payment Method. You may only pay Fees using valid payment methods acceptable to us, as specified via the Swaption Service. You represent and warrant that you are authorized to use the payment method you designate via the Swaption Service. You authorize us to charge your designated payment method for the total amount of your purchase, including any applicable taxes and other charges. You authorize us to use a third-party service to update your designated payment information if it is cancelled or expires. If the payment method cannot be verified, is invalid or is otherwise not acceptable to us, your order may be suspended or cancelled.
C. Subscriptions. CERTAIN OF THE PAID SERVICES PROVIDED BY SWAPTION MAY BE OFFERED ON A SUBSCRIPTION BASIS WITH AUTO-RENEWING PAYMENTS (“SUBSCRIPTION SERVICES”). THE BILLING PERIOD FOR EACH TYPE OF SUBSCRIPTION SERVICE WILL BE AS SPECIFIED VIA THE SWAPTION SERVICE AT THE TIME OF REGISTRATION. WHEN YOU REGISTER FOR ANY SUBSCRIPTION SERVICE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (I) SWAPTION (OR ITS DESIGNATED THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A RECURRING BASIS FOR THE SUBSCRIPTION SERVICE (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) AT THE THEN-CURRENT RATES FOR AS LONG AS THE SUBSCRIPTION SERVICE CONTINUES, AND (II) THE SUBSCRIPTION SERVICE WILL CONTINUE UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SWAPTION SERVICE IN ACCORDANCE WITH THESE TERMS.
D. Cancellation Policy For Subscription Services. TO CANCEL ANY SUBSCRIPTION SERVICE, YOU MUST CONTACT US THROUGH OUR HELP CENTER VIA OUR MOBILE APP OR WEBSITE (WWW.SWAPTIONS.NET) AND FOLLOW THE INSTRUCTIONS IN THE EMAIL WE SEND YOU IN RESPONSE TO YOUR CANCELLATION REQUEST. YOU MUST CANCEL A SUBSCRIPTION SERVICE BEFORE THE START OF THE NEXT BILLING PERIOD IN ORDER TO AVOID CHARGES FOR THE NEXT BILLING PERIOD’S FEES. FOLLOWING ANY CANCELLATION, YOU WILL CONTINUE TO HAVE ACCESS TO THE SUBSCRIPTION SERVICES (SUBJECT TO THESE TERMS) THROUGH THE END OF YOUR CURRENT BILLING PERIOD.
E. Price Changes. SWAPTION RESERVES THE RIGHT TO MODIFY THE FEES FOR ANY PAID SERVICES, INCLUDING ANY SUBSCRIPTION SERVICES, FROM TIME TO TIME IN ITS SOLE DISCRETION. FOR SUBSCRIPTION SERVICES, PRICE CHANGES WILL APPLY TO THE NEXT BILLING PERIOD.
F. Taxes. You are responsible for any sales, duty or other governmental taxes or fees due with respect to your purchase of Paid Services. We will collect applicable sales tax if we determine that we have a duty to collect sales tax and will provide notice of such taxes at the time you place your order.
G. No Refunds. Except as provided in Section 5(H), or as otherwise expressly agreed upon by Swaption, all sales of Paid Services (including any Subscription Services) are final and there are no refunds. THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED SUBSCRIPTION SERVICES PERIODS.
H. Errors. In the event of an error in connection with the pricing or charging of Paid Services, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel the purchase and refund any amount charged. Your sole remedy in the event of a billing error is to obtain a refund for the excess amount charged. To be eligible for such refund, you must provide notice of any such error within 120 days of the date of the billing statement in which such error first appeared.
6. Discontinuance of the Swaption Service
Swaption may, in its sole discretion and without liability to you, modify, discontinue, terminate, suspend or shutdown (temporarily or permanently) your account or all or any portion of the Swaption Service at any time, without prior notice. Upon any such action by Swaption, you must immediately stop using the Swaption Service. You may also cancel your Account at any time, as described in Section 15 below.
7. Acceptable Use
SWAPTION EXPRESSLY PROHIBITS SWAPS THAT INVOLVE HUMAN TRAFFICKING, ILLEGAL SUBSTANCES OR REGULATED CHEMICALS OF ANY KIND. When accessing or using the Swaption Service, you agree that you will not violate any law, contract, intellectual property, or other third-party right or commit a tort. Without limiting the generality of the foregoing, you agree that you will not do, and will not permit any third party to do, any of the following:
• Engage in any unauthorized use of the Swaption Service (including, without limitation, political campaigning, advertising, or marketing);
• Transmit or otherwise make available any content that: (1) you do not have the right to provide or transmit using the Swaption Service, (2) may expose Swaption or its affiliates, licensors, or users to any harm or liability, or (3) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, unlawful, untrue, or otherwise objectionable;
• Upload to, transmit, distribute, store, create, or otherwise sell or offer for sale anything that violates our Prohibited Items Guidelines;
• Transmit or otherwise make available any content that contains software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• Originate, send, deliver, relay or otherwise transmit unsolicited commercial email or other messages through the Swaption Service;
• Copy any portion of the Swaption Service or any underlying content or source code;
• Reverse engineer, disassemble or decompile any portion of the Swaption Service or otherwise attempt to discover or re-create the source code to any software;
• Distribute the software or source code behind the Swaption Service to any third party;
• Make any modification, adaptation, improvement, enhancement, translation or derivative work of or to any portion of the Swaption Service;
• Remove, alter, or obscure any copyright or other proprietary notices of Swaption or its affiliates or licensors in any portion of the Swaption Service;
• Obscure or disable any advertisements that appear on or through the Swaption Service;
• Use any type of automated means, including without limitation any harvesting bot, robot, spider, script, crawler, scraper or other automated means or interface not provided by Swaption, to utilize the Swaption Service or to collect or extract data;
• Access without authorization any networks, systems, or databases used in providing the Swaption Service or any accounts associated with Swaption Service, or to access or use any information therein for any purpose;
• Attempt to probe, test, hack, or otherwise circumvent any security measures;
• Violate any requirements, policies, procedures, or regulations of any network connected to the Swaption Service;
• Use the Swaption Service in any manner that could damage, disable, overburden, or otherwise impair the Swaption Service (or the networks connected to the Swaption Service);
• Interfere with or disrupt the use and enjoyment by others of the Swaption Service, including without limitation attempting, in any manner, to obtain the password, account, or other security information of any other user;
• Falsely state, impersonate, or otherwise misrepresent your identity;
• Provide false information during Account creation or when using the Swaption Payment Solution, or otherwise provide false, inaccurate or misleading information;
• Create more than one Account or create an Account on behalf of anyone other than yourself without permission;
• Use or attempt to use another user’s Account without authorization;
• Attempt to pay for an item using an electronic payment method that you either do not own or are not validly authorized to use;
• Use the Swaption Service in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
• Use the Swaption Service in any manner that exposes Swaption to any harm or liability of any nature;
• Use the Swaption Service to infringe or violate the intellectual property rights or any other rights of anyone else (including Swaption);
• Develop any third-party applications that interact with the Swaption Service without Swaption’s prior written consent;
• Use the Swaption Service to engage in any illegal or unauthorized purpose or to engage in, encourage, or promote activities that are unlawful, misleading, malicious or discriminatory, including, but not limited to violations of these Terms, illegal gambling, fraud, money-laundering, or terrorist activities;
• Transfer any rights granted to you under these Terms; or
• Encourage or induce any third party to engage in any of the activities prohibited under this section.
If you violate any of the foregoing, Swaption reserves the right to suspend or terminate your right to access and use the Swaption Service immediately without notice, and you will have infringed Swaption’s intellectual property and other rights, which may subject you to prosecution and damages. Swaption also reserves the right to take any remedies it deems appropriate under the circumstances if you have purchased or sold items that are in violation of this Section 7. Swaption reserves the right at all times to monitor, review, retain and disclose any information regarding your use of the Swaption Service as necessary to satisfy any applicable law, regulation, legal process or governmental request. You also acknowledge and agree that Swaption is not responsible or liable for the conduct of, or your interactions with, any users of the Swaption Service (whether online or offline). Swaption also has the right but not the obligation to monitor transactions on its website. Your interactions with other users are solely between you and such users and we are not responsible or liable for any loss, damage, injury or harm which results from these interactions. In addition, enforcement of these Terms is solely in our discretion, and the absence of enforcement in some instances does not constitute a waiver of our right to enforce these Terms in other instances. These Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Swaption Service will not contain any content that is prohibited by these Terms.
8. User Content
In the course of using the Swaption Service, you may transmit or otherwise make available certain content, including information about yourself, content, messages, materials, data, information, text, photos, graphics, code or other items or materials (“User Content”) through interactive areas or services, such as posting items for sale, making an offer, private messaging, or other areas or services. User Content may be publicly viewable in some instances. Swaption reserves the right, but does not have the obligation, to remove, screen or edit any User Content posted, transmitted, or stored on the Swaption Service at any time and for any reason without notice. You will not (and will not allow or authorize any third-party to) post, upload to, transmit, distribute, store, create, solicit, disclose, or otherwise, publish through the Swaption Service any of the following:
• User Content that is, in Swaption’s judgment, disrespectful or may expose Swaption, Users or others to harm or liability;
• User Content that may infringe the patent, trademark, trade secret, copyright, intellectual, privacy or proprietary right of any party;
• Private information of any third parties, including addresses, phone numbers and payment card information;
• Viruses, corrupted data or other harmful, disruptive, or destructive files; or
• User Content that inhibits any other person from using or enjoying the Swaption Service.
You are solely responsible for creating backup copies of and replacing your User Content at your sole cost and expense. You acknowledge and agree that Swaption is not responsible for any errors or omissions that you make in connection with the Swaption Service. By submitting or posting User Content, you hereby grant to Swaption a non-exclusive, transferable, royalty-free, perpetual, irrevocable, sublicensable right to use, reproduce, modify, adapt, publish, translate, sell, create derivative works from, distribute, perform, and display the User Content, and your name, company name, location and any other information you submit with the User Content, in connection with the Swaption Service. The use of your or any other User’s name, likeness, or identity in connection with the Swaption Service does not imply any endorsement thereof unless explicitly stated otherwise. We also have the right to disclose your identity to any third party who is claiming that any content posted by you constitutes a violation of their intellectual property rights, or of their right to privacy.
You agree that Swaption may moderate access to and use of the Swaption Service in our sole discretion through any means (including, for example, blocking, filtering, deletion, delay, omission, verification, and/or termination of your access. Furthermore, we have the right to remove any posting you make on the Swaption Platform/Service if, in our sole opinion, your post does not comply with the content standards set out in Sections 7 and 8 above, and any other Swaption Service rules. You agree not to bypass or attempt to bypass such moderation. You further agree that Swaption is not liable for moderating, not moderating or making any representations regarding moderating.
10. Third Party Services and Content
In using the Swaption Platform/Service, you may view content, and upon creating an account utilize services, or otherwise interact with content and services provided by third parties, including, but not limited to third-party Account Holders, logistics providers, links and/or connections to websites, applications or services of such parties (“Third-Party Content”). Swaption does not control, endorse or adopt any Third-Party Content and you acknowledge and agree that Swaption will have no responsibility for any Third-Party Content, including without limitation, material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. In addition, your business or other dealings or correspondence with such third parties are solely between you and the third parties. Swaption is not responsible or liable for any damage or loss of any sort caused, or alleged to be caused, by or in connection with any such dealings, including the delivery, quality, safety, legality or any other aspect of any good or services that you may purchase or sell to or from a third party.
Any comments or materials sent to us, including, but not limited to, ideas, questions, comments, suggestions, feedback or the like regarding the Swaption Service or any other products or services of Swaption (collectively, "Feedback"), is non-confidential and will become our sole property. We will have no obligation to you of any kind, monetary or non-monetary, with respect to such Feedback and will be free to reproduce, use, disclose, exhibit, display, transform, create derivative works from and distribute the Feedback to others without limitation or obligation. You waive any rights you may have to the Feedback (including any copyrights or moral rights). Further, you agree not to submit any feedback that is defamatory, illegal, offensive or otherwise violates any right of any third party or breaches any agreement between you and any third party.
12. Copyright Policy
A. Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Swaption has adopted a policy of terminating, in appropriate circumstances and at Swaption’s discretion, users who are deemed to be repeat infringers. We also may, at Swaption’s discretion, limit access to the Swaption Service and terminate access of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
B. Copyright Complaints. If you believe that anything on the Swaption Service infringes upon any copyright that you own or control, you may file a notification with Swaption’s Designated Agent as set forth below:
C/O Tullo Law Firm
100 S. Ashley Drive, Suite 600
Tampa, FL 33602-5304
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Swaption or the alleged infringer as the result of Swaption’s reliance upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
13. Intellectual Property Rights
Unless otherwise indicated, the Swaption Service and all content, materials, information, functionality and other materials displayed, performed, contained or available on or through the Swaption Service, including, without limitation, the Swaption logo, and all designs, text, graphics, pictures, information, data, sound files, images, illustrations, software, other files, and the selection and arrangement thereof (collectively, the “Materials”) are the proprietary property of Swaption or its affiliates or licensors, and are protected by U.S. and international copyright laws and other intellectual property rights laws.
Except as otherwise provided, subject to your compliance with all of the terms and conditions of these Terms, and in consideration of your promises reflected herein (and with respect to any services requiring payment of fees, your payment of such fees), we grant to you a revocable, personal, non-exclusive, non-assignable and non-transferable license for personal, non-commercial purposes, except where explicitly provided otherwise, to (i) access and use the Swaption Service, (ii) cause the Materials to be displayed from a computer and/or mobile device and (iii) use the Materials, solely as permitted under these Terms (the “License”). Swaption and its affiliates and licensors reserve all rights not expressly granted to you in these Terms. You agree that these Terms do not grant you any rights in or licenses to the Swaption Service or the Materials, except for this express, limited License. You will not otherwise copy, transmit, distribute, sell, resell, license, de-compile, reverse engineer, disassemble, modify, publish, participate in the transfer or sale of, create derivative works from, perform, display, incorporate into another website, or in any other way exploit any of the Materials or any other part of the Swaption Service or any derivative works thereof, in whole or in part for commercial or non-commercial purposes. Without limiting the foregoing, you agree not to frame or display the Swaption Service or Materials (or any portion thereof) as part of any other website or any other work of authorship without our prior written permission. The License granted under this Section will automatically terminate if we suspend or terminate your access to the Swaption Service.
Swaption, swaptions.net, swaption.us, and other Swaption graphics, logos, page headers, buttons, icons, scripts, and service names are trademarks, registered trademarks, or trade dress of Swaption or its affiliates in the U.S. and/or other countries, and may not be copied, imitated, or used, in whole or in part, without Swaption’s prior written consent. You will not use any trademark, product or service name of Swaption without our prior written permission, including without limitation any metatags or other “hidden text” utilizing any trademark, product of service name of Swaption. All other registered trademarks and service marks are used for reference purposes only and remain the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply an endorsement, sponsorship or recommendation by Swaption.
15. Suspension; Termination.
Swaption may revoke or terminate your License to access or use the Swaption Service for any reason without notice at Swaption’s sole discretion. Without limiting the generality of the foregoing, we may revoke or terminate the License if you: (i) breach any obligation in these Terms or in any other agreement between you and us, (ii) violate any policy or guideline applicable to the Swaption Service or Materials, or any other Swaption product or service, or (iii) use the Swaption Service or the Materials other than as specifically authorized in these Terms, without our prior written permission. You will stop accessing or using the Swaption Service immediately if Swaption suspends or terminates your License to access or use the Swaption Service. Swaption reserves the right, but does not undertake any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress against you for continuing to use the Swaption Service during suspension or after termination. Swaption may recover its reasonable attorneys’ fees and court costs from you for such action. These Terms will remain enforceable against you while your License to access or use the Swaption Service is suspended and after it is terminated.
You may also terminate your License to access or use the Swaption Service by closing your Account at any time. For more details on how to close your Account, please refer to our FAQs.
16. Disclaimer of Warranties
A. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY US, THE SWAPTION SERVICE, THE MATERIALS, THE PAID SERVICES, AND ANY ITEMS SOLD BY USERS THROUGH THE SWAPTION SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SWAPTION SERVICE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, AND ANY ITEMS SOLD THROUGH THE SWAPTION SERVICE.
B. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SWAPTION NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR THE RESPECTIVE OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES OF SUCH PARTIES (COLLECTIVELY, THE " SWAPTION PROVIDERS") REPRESENT OR WARRANT (I) THAT THE SWAPTION SERVICE, MATERIALS OR ITEMS SOLD THROUGH THE SWAPTION SERVICE WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE OR ERROR FREE; (II) THAT THE SWAPTION SERVICE, MATERIALS OR ITEMS SOLD THROUGH THE SWAPTION SERVICE WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SWAPTION SERVICE, MATERIALS OR ITEMS SOLD THROUGH THE SWAPTION SERVICE WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIALS AVAILABLE ON OR THROUGH THE SWAPTION SERVICE; (V) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (VI) THAT THE SWAPTION SERVICE, MATERIALS OR ITEMS SOLD THROUGH THE SWAPTION SERVICE ARE NON-INFRINGING; OR (VII) THAT ANY BADGE IS A REPRESENTATION AS TO THE IDENTITY, CHARACTER OR INTEGRITY OF ANY PERSON, BUSINESS, OR ENTITY THAT IS ASSOCIATED WITH A BADGE.
C. YOU ACKNOWLEDGE THAT INFORMATION YOU STORE OR TRANSFER THROUGH THE SWAPTION SERVICE MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, INTERNET OUTAGES, DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES OUTSIDE OF OUR REASONABLE CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH THE SWAPTION SERVICE.
Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
17. Assumption of Risk
A. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED MARKETPLACE AND INTERACTING WITH OTHER USERS IN PERSON. WE DO NOT INVESTIGATE OR VERIFY ANY USER’S REPUTATION, CONDUCT, MORALITY, CRIMINAL BACKGROUND, OR ANY INFORMATION USERS MAY SUBMIT TO THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS WHEN INTERACTING WITH OTHER USERS, PARTICULARLY WHEN MEETING A STRANGER IN PERSON FOR THE FIRST TIME. IT IS POSSIBLE THAT OTHER USERS MAY ATTEMPT TO PHYSICALLY HARM OR DEFRAUD YOU OR OBTAIN INFORMATION FROM YOU FOR FRAUDULENT PURPOSES. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, SELLING AND BUYING THROUGH SWAPTION’S SERVICES (INCLUDING ALL ONLINE AND OFFLINE INTERACTIONS WITH OTHER USERS).
B. COMMUNITY MEETUP SPOTS. COMMUNITY MEETUP SPOTS ARE LOCATIONS IN WHICH A THIRD PARTY (SUCH AS A POLICE DEPARTMENT OR LOCAL STORE) HAS AGREED TO POST A COMMUNITY MEETUP SPOT SIGN. WE ENCOURAGE THIRD PARTIES TO PLACE COMMUNITY MEETUP SPOTS IN WELL-LIT LOCATIONS, WITH SURVEILLANCE AND IN GENERALLY WELL-TRAFFICKED AREAS; HOWEVER, SWAPTION DOES NOT INDEPENDENTLY VERIFY THE CONDITIONS AT ANY COMMUNITY MEETUP SPOT, DOES NOT MONITOR COMMUNITY MEETUP SPOTS AND DOES NOT WARRANTY THEIR SAFETY OR CONDITION. YOUR USAGE OF COMMUNITY MEETUP SPOTS, AND ANY DISPUTE ARISING OUT OF THAT USAGE, INCLUDING AGAINST ANY THIRD PARTY POSTING A COMMUNITY MEETUP SPOT SIGN, REMAINS SUBJECT TO THE EXPRESS PROVISIONS IN SECTIONS 16-22 OF THESE TERMS OF SERVICE.
18. Limitation of Liability
A. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SWAPTION OR THE SWAPTION PROVIDERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (I) USE OF THE SWAPTION SERVICE OR MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY OF THE SWAPTION SERVICE OR MATERIALS, (II) ANY INABILITY TO USE THE SWAPTION SERVICE OR MATERIALS FOR WHATEVER REASON, OR (III) ANY GOODS OR SERVICES DISCUSSED, PURCHASED OR OBTAINED, DIRECTLY OR INDIRECTLY, THROUGH THE SWAPTION SERVICE, EVEN IF SWAPTION OR THE SWAPTION PROVIDERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM (Y) RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM COMPANY, OR (Z) THAT RESULT FROM EVENTS BEYOND SWAPTION’S OR THE SWAPTION PROVIDERS' REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM A FORCE MAJEURE EVENT, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SWAPTION’S RECORDS, PROGRAMS OR SERVICES.
B. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SWAPTION OR THE SWAPTION PROVIDERS (JOINTLY), ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE THE SWAPTION SERVICE OR OTHERWISE RELATING TO THESE TERMS EXCEED THE GREATER OF (I) ANY COMPENSATION YOU PAY, IF ANY, TO SWAPTION FOR ACCESS TO OR USE OF THE SWAPTION SERVICE OR MATERIALS DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; OR (II) $100 U.S. DOLLARS.
C. THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR SWAPTION OR THE SWAPTION PROVIDERS' GROSS NEGLIGENCE, INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT OR FRAUD.
You agree to hold harmless, defend and indemnify Swaption and the Swaption Providers from all liabilities, losses, damages, deficiencies, claims, causes of action, demands and expenses, (including, but not limited to, reasonable attorneys' fees), that are due to, arise from or otherwise relate to your conduct or your use or misuse of the Swaption Service or Materials, including, without limitation, any actual or threatened suit, demand or claim made against Swaption or any Swaption Provider that arises out of or relates to: (i) any intellectual property rights or other proprietary rights of any third party, (ii) your breach of these Terms including without limitation your breach of any of your representations and warranties; (iii) your use of any of the Swaption Service or Materials; (iv) your unlawful conduct (v) any content that you store on or transmit through the Swaption Service; or (vi) any items that you mail or ship in connection with the Swaption Service, including items sold to other Swaption users. Swaption may assume exclusive control of any defense of any matter subject to indemnification by you, and you agree to cooperate with Swaption in such event.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING ARBITRATION (INCLUDING A JURY TRIAL WAIVER) ANY AND ALL DISPUTES (OTHER THAN SPECIFIED INTELLECTUAL PROPERTY CLAIMS AND SMALL CLAIMS) WITH SWAPTION AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SWAPTION (NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS).
A. Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 7 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Swaption agree (1) to waive your and Swaption’s respective rights to have any and all Disputes arising from or related to these Terms, the Swaption Service or the Materials, resolved in a court, and (2) to waive your and Swaption’s respective rights to a jury trial. Instead, you and Swaption agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
B. No Class Arbitrations, Class Actions or Representative Actions. You and Swaption agree that any Dispute arising out of or related to these Terms, the Swaption Service or the Materials is personal to you and Swaption and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Swaption agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Swaption agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals. The limitations imposed by this Section 20(B) shall apply to, but are in no way limited to, class action refund claims brought by a class of taxpayers against Swaption related to taxes collected and remitted in good faith efforts at compliance with state and local marketplace facilitator or marketplace provider laws. Nothing in this Section 20(B) shall be construed to prohibit an Account Holder(s) from filing a refund claim with other Account Holder(s) or applicable state and local tax authority as permitted by law.
C. Federal Arbitration Act. You and Swaption agree that these Terms affect interstate commerce and that the enforceability of this Section 20 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
D. Notice; Informal Dispute Resolution. You and Swaption agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Swaption shall be sent by certified mail or courier to Swaption LLC, Attn: Tullo Law Firm, 100 S. Ashley Drive, Suite 600, Tampa, FL 33602-5304. Your notice must include (1) your name, postal address, telephone number, the email address you use or used for your Account, and, if different, an email address at which you can be contacted, (2) a description in reasonable detail of the nature or basis of the Dispute, and (3) the specific relief that you are seeking. Our notice to you will be sent to the email address you used to register for your Account, and will include (a) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that we are seeking. If you and Swaption cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Swaption may, as appropriate and in accordance with this Section 20, commence an arbitration proceeding, or to the extent specifically provided for in section 20(A), file a claim in court.
E. Process. Except for Disputes arising out of or related to a violation of Section 7 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Swaption agree that any Dispute must be commenced or filed by you or Swaption within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Swaption will no longer have the right to assert such claim regarding the Dispute). You and Swaption agree that (1) any arbitration will occur in Hillsborough County, Florida, (2) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and mediation Services (“JAMS”), which are hereby incorporated by reference, and (3) that the state or federal courts of the State of Florida and the United States, respectively, sitting in Hillsborough County, Florida have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
F. Authority of the Arbitrator. As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
G. Rules of JAMS. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (1) acknowledge and agree that you have read and understand the rules of JAMS, or (2) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
H. Severability. If any term, clause or provision of this Section 20 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 20 will remain valid and enforceable. Further, the waivers set forth in Section 20(B) are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
I. Participation in Third-Party Dispute. In the event Swaption or its personnel are called upon to participate as a fact-witness, deponent or affiant in a dispute between you and a third-party, based upon an allegation that you committed a misrepresentation, fraud, or unlawful act while on the Swaption Service (collectively “Wrongful act”), and such allegation is determined by a court of competent jurisdiction to be true, you will reimburse Swaption for any costs or fees it incurs in association with Swaption’s involvement in the matter.
21. Governing Law; Venue.
These Terms, your access to and use of the Swaption Service and Materials shall be governed by and construed and enforced in accordance with the laws of the State of Florida without regard to conflict of law rules or principles (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
A. Entire Agreement; Order of Precedence. These Terms contain the entire agreement and supersede all prior and contemporaneous understandings between the parties regarding the Swaption Service. These Terms do not alter the terms or conditions of any other electronic or written agreement you may have with Swaption for the Swaption Service or for any other Swaption product, feature, service or otherwise. In the event of any conflict between these Terms and any other agreement you may have with Swaption, the terms of that other agreement will control only if these Terms are specifically identified and declared to be overridden by such other agreement.
B. Amendments. We reserve the right to make changes or modifications to these Terms from time to time, in our sole discretion. If we make changes to these Terms, we will provide you with notice of such changes, such as by sending you an email and/or by posting the amended Terms via the Swaption Service and updating the “Last Updated” date at the top of these Terms. All amended Terms will become effective immediately on the date they are posted to the Swaption Service unless we state otherwise via our notice of such amended Terms. Any amended Terms will apply prospectively to use of the Swaption Service after such changes become effective. Your continued use of the Swaption Service following the effective date of such changes will constitute your acceptance of such changes. If you do not agree to any amended Terms, you must discontinue using the Swaption Service.
C. Severability. If any provision of these Terms is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
D. Waiver. Our failure or delay in exercising any right, power or privilege under these Terms will not operate as a waiver thereof.
E. Relationship. Swaption is an independent contractor for all purposes, and is not your agent or trustee. You are not an agent of Swaption.
F. Assignment. You may not assign or transfer any of your rights or obligations under these Terms without prior written consent from Swaption, including by operation of law or in connection with any change of control. Swaption may assign or transfer any or all of its rights under these Terms, in whole or in part, without obtaining your consent or approval.
G. Headings. Headings of sections are for convenience only and will not be used to limit or construe such sections.
H. Survival. Sections 16 (Disclaimer of Warranties), 18 (Limitation of Liability), 19 (Indemnity), 20 (Arbitration), 21 (Governing Law; Venue), this Section 22 (Miscellaneous), and any other term that, by its nature, should survive, will survive any termination or expiration of these Terms.