TERMS OF USE

Updated 11/16/15

Please read these Terms of Use (the “Agreement” or “Terms of Use”) carefully before using the services offered by SwagTag, Inc. (“SwagTag” or the “Company”). This Agreement sets forth the legally binding terms and conditions for your use of the website at www.SwagTagApp.com, all other sites owned and operated by SwagTag that redirect to www.SwagTagApp.com, all mobile applications owned and operated by SwagTag (the “Apps”), and all embeds utilizing code owned by SwagTag that function in co-ordination with the website www.SwagTagApp.com (collectively, the “Site”), and the service owned and operated by the SwagTag (together with the Site, the “Service”). By using the Service in any manner, including, but not limited to, visiting or browsing the Site or contributing content, information, or other materials or services to the Site, or by clicking on the “I Accept” button or creating an account with SwagTag, you agree to be bound by this Agreement.

SUMMARY OF SERVICE

SwagTag provides a platform on which certain users (“Contest Sponsors”) run events (“Contests”) that invite other users (“Players”) to submit content into Contests in hopes of winning prizes. Through the Site, email, websites, and other media, the Service makes accessible various content, including, but not limited to, videos, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, projects, other material and information, and associated trademarks and copyrightable works (collectively, “Content”). Contest Sponsors, Players, and other visitors to, and users of the Service (collectively, “Users”) may have the ability to contribute, add, create, upload, submit, distribute, facilitate the distribution of, collect, post, or otherwise make accessible (“Submit”) Content. “User Submissions” means any Content Submitted by Users.

ACCEPTANCE OF TERMS

The Service is offered subject to acceptance of all of the terms and conditions contained in these Terms of Use, including the Privacy Policy available at www.SwagTagApp.com/privacy, and all other operating rules, policies, and procedures that may be published on the Site by SwagTag, which are incorporated by reference. These Terms of Use apply to every User of the Service. In addition, some services offered through the Service may be subject to additional terms and conditions adopted by SwagTag. Your use of those services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference.

SwagTag reserves the right, at its sole discretion, to modify or replace these Terms of Use by posting the updated terms on the Site. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes.

SwagTag reserves the right to change, suspend, or discontinue the Service (including, but not limited to, the availability of any feature, database, or Content) at any time for any reason. SwagTag may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.

The Service is available to individuals who are at least 13 years old, however, a minor must have lawful consent to use the Service from their legal guardian and may not be eligible for some Contests. If you are a minor (under legal age, but at least 13 years old) and want to use the Service, your legal guardian must represent and warrant that you are an individual and that your legal guardian will accept responsibility for you and your use of the Service as if the legal guardian were the User. If you are at least 18 years old, you represent and warrant you are an individual and of legal age in your jurisdiction to form a binding contract, and that all registration information you submit is accurate and truthful. Prior to prizes being awarded, identity verification, liability releases and additional information, including proof of age, may be required.  SwagTag reserves the right, in its sole discretion, to refuse to offer the Service to any person or entity and to change its eligibility criteria at any time.  This provision is void where prohibited by law and the right to access the Service is revoked in those jurisdictions.

APP LICENSE

Subject to your compliance with the Terms of Use, SwagTag grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the Apps on the mobile devices that you own or control and (except as allowed by the terms set forth in the section of these Terms of Use titled, “Contests: Running a Promotion”) to run the Apps solely for your own personal purposes and for the purposes described herein.  Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.

RULES AND CONDUCT

As a condition of use, you (the User) promise not to use the Service for any purpose that is prohibited by the Terms of Use or law. The Service is provided only for your own personal, non-commercial use (except as allowed by the terms set forth in the section of these Terms of Use titled, “Events: Running a Promotion”). You are responsible for all of your activity in connection with the Service. You shall not, and shall not permit any third party using your account to, take any action, or Submit Content, that:

  • infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any other person or entity, or violates any law or contract;
  • you know is false, misleading, or inaccurate;
  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another’s privacy;
  • constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters;
  • contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of the Company or any third party;
  • is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; or
  • impersonates any person or entity, including any employee or representative of the SwagTag.

Additionally, you shall not: (i) take any action that imposes or may impose (as determined by SwagTag in its sole discretion) an unreasonable or disproportionately large load on SwagTag’s or its third-party providers’ infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures SwagTag may use to prevent or restrict access to the Service (or other accounts, computer systems, or networks connected to the Service); (iv) run Maillist, Listserv, or any form of auto-responder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).

You shall not directly or indirectly: (i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Service; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.

If you are an Contest Sponsor, you agree to not abuse other Users’ personal information. “Abuse” is defined as using personal information for any purpose other than those: (i) explicitly specified in the Official Contest Rules for an Contest, or (ii) outlined in or related to the verification process or in the delivery of a prize, or (iii) outlined in the Contest Sponsor’s publicly available privacy policy, and if there is no such privacy policy, as outlined in SwagTag’s privacy policy.

REGISTRATION

You may view some Content on the Site without registering, but as a condition of using certain aspects of the Service, you may be required to register with SwagTag and select a screen name (“User ID”) and password. You shall provide accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your account. You shall not use as a User ID, domain name, or Contest name, any name or term that (i) is the name of another person, with the intent to impersonate that person; (ii) is subject to any rights of another person, without appropriate authorization; or (iii) is offensive, vulgar, or obscene. SwagTag reserves the right in its sole discretion to refuse registration of or cancel a User ID, domain name, and Contest name. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password for the Site. You shall never use another User account without the other User’s express permission. You will immediately notify SwagTag in writing of any unauthorized use of your account, or other known account-related security breach.

CONTESTS: RUNNING A PROMOTION

SwagTag provides  a platform on which Contest Sponsors run Contests for commercial purposes.  Contests offer individuals the opportunity to Submit Content in Contests in hopes of winning prizes. Contest Sponsors consider Contests a form of advertising, a way to engage with Users and a chance to collect certain User information and User Content in a forthright, legal manner. 

If you are an Contest Sponsor, you agree to the additional terms for Contest Sponsors set forth in this section.

By creating an Contest on SwagTag, you as the Contest Sponsor are offering the public the opportunity to enter into an Contest sponsored by you. By sponsoring an Contest on SwagTag, you as the Contest Sponsor accept certain responsibilities and liabilities related to your Contest.  All dealings related to the Contest and awarding of prizes are solely between you and the Players in your Contest and are governed by the Official Contest Rules for such Contest. 

By creating an Contest on SwagTag, in addition to the Terms of Service, you agree to the following additional terms:

  • Contest Sponsors agree to provide their payment information at the time they create an Contest. The payment will be collected as detailed during the Contest creation or billing process.
  • Contest Sponsors consent to SwagTag and its payment partners authorizing or reserving a charge on their payment card or other payment method for any amount up to the full budgeted fee at any time between the Contest creation and collection of the funds.
  • Contest Sponsors agree to have sufficient funds or credit available at the payment deadline to ensure that the fee will be collectible.
  • Contest Sponsors understand that SwagTag does not offer refunds for Contests that do not fill to their budgeted capacity.
  • Contest Sponsors are expected to adhere to Contest guidelines and Official Contest Rules.
  • Contest Sponsors are expected to fulfill all prizes of their successful Contests in a timely fashion outlined in their Official Contest Rules.
  • Contest Sponsors agree to follow appropriate law and describe the possible uses of User information collected during the verification process for awarding prizes either in the verification process documents, in their Official Contest Rules, or in their publically accessible privacy policy.  If an Contest Sponsor does not have a publically accessible privacy policy, then it agrees that it will treat all User Information gathered prior to the date on which the Contest Sponsor adopts a publically accessible privacy policy in accordance with SwagTag’s Privacy Policy.
  • SwagTag reserves the right to reject, cancel, interrupt, remove, or suspend an Contest at any time and for any reason. SwagTag is not liable for any damages as a result of any of those actions. SwagTag’s policy is not to comment on the reasons for any of those actions.

Indemnification: If you, the Contest Sponsor, run your Contest in accordance with SwagTag guidelines, Official Contest Rules, SwagTag’s Privacy Policy and all applicable laws, use and adhere to all SwagTag’s legal language without any additions or modifications, then SwagTag will pay the costs of defense related to any User complaints and actions resulting from our legal language and the execution of your Contest using our Service and it will pay any final judgments awarded as a result of any such complaint or action or any settlement related to such complaint or action.  This indemnification, however, will not extend to the fulfillment or potential use or enjoyment of your prizes or your use of User Information in a manner unrelated to the execution of your Contest on this Service.  SwagTag’s obligations pursuant to this paragraph are conditioned upon your providing us with prompt notice of such complaint or action, allowing SwagTag to assume the exclusive defense and control thereof, and assisting and cooperating with SwagTag in the defense of any such complaint or action.

FEES AND PAYMENTS

Joining SwagTag is free to most Users. However, we do charge fees for certain services. When you use a service that has a fee you (e.g. Contest Sponsors) have an opportunity to review and accept the fees that you will be charged. Changes to fees are effective after we provide you with notice by posting the changes on the Site. You are responsible for paying all fees and taxes associated with your use of the Service.

THIRD-PARTY SITES

The Service may permit you to link to other websites or resources on the internet, and other websites or resources may contain links to the Site. When you access third-party websites, you do so at your own risk. Those other websites are not under SwagTag’s control, and you acknowledge that SwagTag is not liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of those other websites or resources. The inclusion on another website of any link to the Site does not imply endorsement by or affiliation with SwagTag. You further acknowledge and agree that SwagTag shall not be liable for any damage related to the use of any content, goods, or services available through any third-party website or resource.

CONTENT AND LICENSE

You agree that the Service contains Content provided by SwagTag and its partners and Users and that the Content may be protected by copyrights, trademarks, service marks, patents, trade secrets, or other rights and laws. You shall abide by and maintain all copyright and other legal notices, information, and restrictions contained in any Content accessed through the Service.

SwagTag grants to each User of the Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use and reproduce the Content, solely for personal, non-commercial use related to the associated Contest or specified Service. Use, reproduction, modification, distribution, or storage of any Content for other than personal, non-commercial use is prohibited without prior written permission from SwagTag, or from the copyright holder. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third-party right.

You acknowledge that SwagTag has no obligation to pre-screen Content (including, but not limited to, User Submissions), although SwagTag reserves the right in its sole discretion to pre-screen, refuse or remove any Content.  By entering into the Terms of Use, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Submissions, including without limitation chat, text or voice communications.  In the event that SwagTag pre-screens, refuses or removes any Content, you acknowledge that SwagTag will do so for its benefit, not yours.  Without limiting the foregoing, SwagTag shall have the right to remove any Content that violates the terms or is otherwise objectionable.

INTELLECTUAL PROPERTY

By Submitting User Submissions on the Site or otherwise through the Service, you agree to the following terms:

  • SwagTag will not have any ownership rights over your User Submissions and nothing in these Terms of Use will restrict any rights you have to use and exploit your User Submissions outside of any Contests in which you participate. However, the Company needs the following license to perform and market the Service on your behalf and on behalf of its other Users and itself. You grant to SwagTag the worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable right to (and to allow others acting on its behalf to) (i) use, edit, modify, prepare derivative works of, reproduce, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute, and otherwise fully exploit your User Submissions and your trademarks, service marks, slogans, logos, and similar proprietary rights (collectively, the “Trademarks”) in connection with (a) the Service, (b) SwagTag’s (and its successors’ and assigns’) businesses, (c) promoting, marketing, and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third-party websites); (ii) take whatever other action is required to perform and market the Service; (iii) allow its Users to stream, transmit, playback, download, display, feature, distribute, collect, and otherwise use the User Submissions and Trademarks in connection with the Service; and (iv) use and publish, and permit others to use and publish, the User Submissions, Trademarks, names, likenesses, and personal and biographical materials of you and the members of your group, in connection with the provision or marketing of the Service. The foregoing license grant to SwagTag does not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions.
  • You are publishing your User Submission, and you may be identified publicly by your name or User ID in association with your User Submission.
  • You grant to each User a non-exclusive license to access your User Submissions through the Service, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions solely for personal, non-commercial use.
  • You grant to each Contest Sponsor a non-exclusive license to access your User Submissions through the Service, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions
  • You further agree that your User Submissions will not contain third-party copyrighted material or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant SwagTag all of the license rights granted herein.
  • You will pay all royalties and other amounts owed to any person or entity based on your Submitting User Submissions to the Service or SwagTag’s publishing or hosting of the User Submissions as contemplated by these Terms of Use.
  • The use or other exploitation of User Submissions by SwagTag and Users as contemplated by this Agreement will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
  • SwagTag shall have the right to delete, edit, modify, reformat, excerpt, or translate any of your User Submissions.
  • All information publicly posted or privately transmitted through the Site is the sole responsibility of the person from which that content originated.
  • SwagTag will not be liable for any errors or omissions in any Content.
  • SwagTag cannot guarantee the identity of any other Users with whom you may interact while using the Service.
  • All Content you access through the Service is at your own risk and you will be solely responsible for any resulting damage or loss to any party.

In accordance with the Digital Millennium Copyright Act (“DMCA”), SwagTag has adopted a policy of, in appropriate circumstances, terminating User accounts that are repeat infringers of the intellectual property rights of others. SwagTag also may terminate User accounts even based on a single infringement.

COPYRIGHT NOTIFICATIONS

SwagTag will terminate the membership privileges of any User who repeatedly infringes copyright upon prompt written notification to SwagTag by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Site or in the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • a description of the copyrighted work that you claim has been infringed;
  • a description of the location on the Site or Service of the material that you claim is infringing;
  • your address, telephone number, and email address;
  • a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Contact information for SwagTag’s Copyright Agent for notice of claims of copyright infringement is as follows: Copyright Agent, c/o SwagTag Inc. 2720 Kelly Avenue, McKinleyville, CA 95519. 

TERMINATION

SwagTag may terminate your access to the Service, without cause or notice, which may result in the forfeiture and destruction of all information associated with your account. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid to SwagTag are non-refundable. All provisions of the Terms of Use that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

WARRANTY DISCLAIMER

SwagTag has no special relationship with or fiduciary duty to you. You acknowledge that the SwagTag has no duty to take any action regarding any of the following: which Users gain access to the Site; what Content Users access through the Site; what effects the Content may have on Users; how Users may interpret or use the Content; or what actions Users may take as a result of having been exposed to the Content. SwagTag cannot guarantee the authenticity of any data or information that Users provide about themselves or their User Submissions. You release SwagTag from all liability for your having acquired or not acquired Content through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. SwagTag makes no representations concerning any Content on the Site, and SwagTag is not liable for the accuracy, copyright compliance, legality, or decency of material contained on the Service.

SwagTag does not guarantee that any Content will be made available through the Service. SwagTag has no obligation to monitor the Service or Content. The Company reserves the right to, at any time, for any reason, and without notice: (i) cancel, reject, interrupt, remove, or suspend an Contest; (ii) remove, edit, or modify any Content, including, but not limited to, any User Submission; and (iii) remove or block any User or User Submission. SwagTag reserves the right not to comment on the reasons for any of these actions.

The Service is provided “as is” and “as available” and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. SwagTag, and its directors, employees, agents, suppliers, partners, and content providers do not warrant that: (a) the Service will be secure or available at any particular time or location; (b) any defects or errors will be corrected; (c) any content or software available at or through the Service is free of viruses or other harmful components; or (d) the results of using the Service will meet your requirements. Your use of the Service is solely at your own risk. Some states or countries do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.

Electronic Communications Privacy Act Notice (18 USC §2701-2711): SWAGTAG MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEBSITE LINKED TO THE SITE. SwagTag will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on the Company’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.

INDEMNIFICATION

You shall defend, indemnify, and hold harmless SwagTag, its affiliates, and each of its and its affiliates’ employees, contractors, directors, suppliers, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees and other legal costs, that arise from or relate to your use or misuse of, or access to, the Service and Content, or otherwise from your User Submissions, violation of the Terms of Use, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. SwagTag reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with SwagTag in asserting any available defenses.

LIMITATION OF LIABILITY

In no event shall SwagTag, nor its directors, employees, agents, partners, suppliers, or content providers, be liable under contract, tort, strict liability, negligence, or any other legal or equitable theory with respect to the Service (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, (ii) for any bugs, viruses, Trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) the greater of (a) the amounts paid by a User to SwagTag in the preceding 12 months and (b)one hundred U.S. dollars ($100.00). Some states may not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.

FEEDBACK

You agree that submission of any ideas, suggestions, documents, and/or proposals to SwagTag through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that SwagTag has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You hereby grant to SwagTag a full paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Site and the Service.

APP STORES

You acknowledge and agree that the availability of the Apps and the Service is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (“App Store”).  You acknowledge that the Terms of Use are between you and SwagTag and not with the App Store.  SwagTag, not the App Store, is solely responsible for the Site, including the Apps, the content thereof, the Service, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the Apps, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with the Site, including the Apps.  You agree to comply with, and your license to use the Apps is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Site, including the Apps. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Use and will have the right to enforce them.

ACCESSING AND DOWNLOADING THE APPS FROM ITUNES

The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

You acknowledge and agree that (i) the Terms of Use are concluded between you and SwagTag only, and not Apple, and (ii) SwagTag, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between SwagTag and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.

You and SwagTag acknowledge that, as between SwagTag and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

You and SwagTag acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between SwagTag and Apple, SwagTag, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.

You and SwagTag acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms of Use as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

RELEASE

You hereby release SwagTag and its successors from claims, demands, any and all losses, damages, rights and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from your use of the Site or Service, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms of Use or your use of the Site or the Service.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.

ACCESS AND ELIGIBILITY

Accessing the Service is prohibited from territories where the Content is illegal. If you access the Service, you do so at your own initiative and are responsible for compliance with local laws.  Additionally, you will be deemed ineligible to win a prize in an Contest if you reside outside of the 50 United States and the District of Columbia, if you are not of an eligible age for the Contest, or if you do not reside in the specific states listed in the Official Contest Rules for the Contest.

ELECTRONIC DELIVERY, NOTICE POLICY, AND YOUR CONSENT

By using the Service, you consent to receive from SwagTag all communications including notices, agreements, legally required disclosures, or other information in connection with the Service (collectively, “Contract Notices”) electronically. SwagTag may provide the electronic Contract Notices by posting them on the Site. If you desire to withdraw your consent to receive Contract Notices electronically, you must discontinue your use of the Service.

GOVERNING LAW

These Terms of Service (and any further rules, policies, or guidelines incorporated by reference) shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that the Site and its Service are deemed a passive website that does not give rise to personal jurisdiction over SwagTag or its parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of California. You agree that any action at law or in equity arising out of or relating to these terms, or your use or non-use of the Service, shall be filed only in the state or federal courts located in San Francisco in the State of California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

INTEGRATION AND SEVERABILITY

These Terms of Use and other referenced material are the entire agreement between you and SwagTag with respect to the Service, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and SwagTag with respect to the Service and govern the future relationship. In the event of any conflict between the Terms of Use and the Official Contest Rules related to an Contest, the Official Contest Rules will control with respect to such Contest.  If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

LIMITATIONS PERIOD

YOU AND SWAGTAG AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OF USE, THE SITE, THE SERVICE OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

EXPORT CONTROL

You may not use, export, import, or transfer the Site, including the Apps, except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Apps or the Service, and any other applicable laws.  In particular, but without limitation, the Site and the Service may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Site or the Service, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Site or the Service for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by SwagTag are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

CONSUMER COMPLAINTS

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

MISCELLANEOUS

SwagTag shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond SwagTag’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation. The Terms of Use are personal to you, and are not assignable, transferable, or sublicensable by you except with SwagTag’s prior written consent. SwagTag may assign, transfer, or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Use and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Use, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.