Last Updated: July 21, 2021
These Terms of Service (“Terms”) apply to your access to and use of the online services provided by 5007490 Ontario Ltd. dba Swell City (“Swell City” or “we”), including the online services we make available via our websites and mobile applications (collectively, the “Platform”).
Your installation or use of any downloadable software provided by Swell City, including mobile apps or PC- or Mac-based software, is subject to our end user license agreement (“EULA”), and you agree to be bound by the EULA in connection with your use of that software.
- If you are under 18 years of age (or the age of legal majority where you live), you may use our Platform only with the permission of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user, including any breach of these Terms, and for determining the suitability of the Platform for such user. Users under 16 (and their parents or legal guardians) must satisfy any consent mechanism required via the Platform. We reserve the right to refuse access by users under certain ages, as set in our sole discretion from time to time.
- You may only establish an account on our Platform on behalf of a legal entity or organization with our prior written authorization. If you use our Platform on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or that person or entity violates these Terms, that person or entity agrees to be responsible to us.
3. USER ACCOUNTS AND ACCOUNT SECURITY
If you register for an account to use our Platform, you must provide accurate account information (except that pseudonyms are permitted for usernames) and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of those users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4. USER CONTENT
- Our Platform may allow you and other users to create, post, store and share content, including messages, text, photos, audio, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Swell City.
- You grant Swell City a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. For clarity, this means we reserve the right to use things like your name, avatar and in-game performance in various materials, including advertising and promotional content and third-party platforms. When you post or otherwise share User Content on or through our Platform, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. You also agree that you may be eligible to receive promotional items, labels, in-game content or other rewards as a result of your participation in the Platform or events (such as races) within the Platform. Participation in some of those events may result in your entry in sweepstakes, raffles, or other random or automatic selections for promotional items. At your election, you may decline to receive any such items or rewards.
- You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
5. PROHIBITED CONDUCT AND CONTENT
- You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort in connection with your use of our Platform, and you are solely responsible for your conduct while using our Platform. Further, you will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user and Swell City;
- Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell, resell or otherwise commercially use our Platform by (i) displaying the Platform in a commercial setting (like a cyber cafe, gaming center or other commercial establishment) (which is encouraged with the right display and synergies and with Swell City's prior written authorization), (ii) selling, licensing or renting any in-game virtual items or access to your account to any third party; (iii) performing activities on the Platform for others for compensation; or (iv) using the Platform for any “esports” or group competition sponsored, promoted or facilitated by any commercial or non-profit entity (which may also be encouraged depending on the circumstances and with Swell City's prior written authorization).
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Platform, except as expressly permitted by us or our licensors. In spite of the foregoing, you are welcome to capture or stream videos of you and other users (if you have their consent) participating in Swell City races or events, and to share those videos through video sharing services like Twitch, YouTube and other similar services, subject to the following limitations: (i) you may not do so in such a way that is: (1) inaccessible to the general public behind a paywall, (2) subject to viewing only with a subscription separate and apart from Swell City or (3) that requires the purchase by a third party of tickets or other redeemable vouchers, either in person or online; and (ii) you may not create, host, promote, participate in, sponsor, engage other sponsors in, or otherwise encourage competitions between Swell City racers (e.g., eSports) that use the Platform for any commercial purpose. Swell City may allow some individuals to engage in these activities upon request made to Swell City and following our prior written authorization or in conformity with other written guidelines provided by Swell City or through a separate agreement with Swell City;
- Modify our Platform, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Platform;
- Use our Platform other than for its intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Platform or that could damage, disable, overburden or impair the functioning of our Platform in any manner;
- Reverse engineer any aspect of our Platform or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Platform;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Platform, including any application that reads areas of RAM used by the Platform to store information about a character or an environment without Swell City’s prior authorization;
- Bypass or ignore instructions contained in our robots.txt file; or
- Develop or use any applications that interact with our Platform without our prior written authorization, including any cheats, mods or matchmaking services or applications that emulate or redirect the communication protocols used by Swell City in any way, including for unauthorized play over the Internet, network play, or as part of content aggregation networks;
- Send, distribute or post spam, unsolicited or bulk solicitations or advertisements, including via chain letters or pyramid schemes;
- Use our Platform (including data, intellectual property, brand or API) for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
- You may not create, post, store or share any User Content that:
- Is confidential or that you do not have all necessary rights to disclose;
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Platform, or may expose Swell City or others to any harm or liability of any type.
- Enforcement of this Section 5 (which includes the right to work with local or international authorities and other service providers by providing information necessary for investigatory purposes or in adherence with court-ordered legal action) is solely at Swell City’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited by this section.
6. VIRTUAL ITEMS
- Swell City may offer different types of digital content, credits, coins or other virtual items for which you may earn or otherwise receive a limited license to use via the Platform (“Virtual Items”). You understand that while you may “earn” Virtual Items, you do not legally “own” the Virtual Items and the amounts of any Virtual Item do not refer to any credit balance of real currency or its equivalent. Any “virtual currency” balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your limited license.
- Third-Party Purchases or Sales. Swell City does not authorize, and expressly prohibits, the purchase of Virtual Items from third parties. You will not sell or purchase Virtual Items to or from other parties and will not make any offer related to a sale or purchase of Virtual Items.
- Redemption. Virtual Items may be redeemed solely by Swell City for goods or services made available through our Platform. You may redeem Virtual Items only by the method and within the scope described via the Platform.
- Restrictions. Virtual Items are non-returnable and non-refundable. Virtual Items cannot be resold, transferred for value, redeemed for cash or applied to any other account. We may limit the number of Virtual Items you can earn or use within certain periods of time or implement other restrictions on the receipt or use of Virtual Items. We may further restrict your ability to redeem your Virtual Items based on your place of residence.
- Other limits. All Virtual Items may be unconditionally forfeited if your account is terminated or suspended for any reason or becomes inactive, as determined in Swell City’s sole discretion, or if Swell City discontinues the Platform or any portion or feature of the Platform. You acknowledge that you will not receive money or other compensation for unused Virtual Items when an account is closed.
7. TERMS OF SALE
- Product Availability. All tangible products offered for sale via the Platform are subject to availability and we reserve the right to impose quantity limits on any order or reject all or any part of an order without prior notice.
- Memberships. If you purchase a membership to use the Platform, you acknowledge that your membership will auto renew until you cancel your membership or we terminate it. The membership period (or an indication that the membership will continue until cancelled) and the cost of the membership (during and after any initial promotional period) are disclosed prior to purchase. If you purchase a membership via our Platform, we automatically bill your payment method each month on the calendar day corresponding to the start of the paying portion of your membership (or on the last day of the month if such month does not have a sufficient number of days to include your membership start date (for example, if your membership started on March 31, the billing date in April will be April 30)). You may cancel your Swelldone membership at any time, and you will continue to have access through the end of your membership period (or free trial period, if applicable). You will not have the right to receive any pro-rated refunds if you cancel your membership period early. You must cancel your membership at least 24 hours before the end of each billing cycle in order to avoid being billed for the next month's membership.
- Memberships Purchased from Third-Party Platforms. If you started a Swelldone membership by purchasing through a third-party platform (like Apple’s App Store), you will need to cancel through the tools made available by that third party, which may include visiting your account and turning off auto-renewing payments for your Swelldone membership. If you purchase a membership through a third-party platform, the purchase is subject to those platforms’ payment terms and conditions. Swell City does not control how you can pay for or cancel memberships through those platforms.
- Free Trials. Your membership may start with a free trial. Swell City reserves the right, in its sole discretion, to determine your free trial eligibility. Our Platform will indicate whether or not the free trial will automatically convert to a paid membership upon expiration of the trial period. If so, unless you cancel your membership prior to the end of the free trial period, we will begin billing your payment method on a recurring basis for your membership upon expiration of the free trial period until you cancel or we terminate your membership.
Pausing Membership. The terms of this subsection apply if we offer you the ability to pause your membership through your account. If you pause your membership, you must select when your membership will resume. If you do not cancel your membership before your selected resume date, your membership will resume automatically on the selected resume date. You may also be able to manually resume your membership through your account before your previously selected resume date. Your payment method will be charged on the date the membership resumes (which will be the pre-selected date or the date you manually resume the membership), and your new renewal billing date will correspond to that date. See further details above on how renewal dates operate for subsequent months.
- Pricing. Prices for products or services are subject to change at any time, but changes will not affect any order for products or services you have already placed except that for auto-renewing memberships price changes will take effect when indicated in our email notice to you.
- Taxes. To the fullest extent permitted by applicable law, you are responsible for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (“Taxes”) due with respect to your purchase through our Platform. Orders placed outside Canada and the U.S. may incur Taxes as determined by the customs agency within the destination country. We will collect applicable Taxes if we determine we have a duty to collect Taxes. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. For U.S. users, the actual Taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. You may have a duty to directly report and pay Taxes if we do not collect such Taxes.
- Payment Method. Only valid payment methods acceptable to us may be used to complete a purchase via the Platform. You represent and warrant that you are authorized to use your designated payment method. You authorize us to charge your designated payment method for the total amount of your purchase (including any applicable taxes and any shipping and handling charges). If any of the products in your order are unavailable, we will only charge the prices, Taxes and other applicable charges associated with the products that are included in the shipment. If you started a membership using your account with a third party (like Apple’s App Store) then you will need to edit your payment method through your account with that third party. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, you remain responsible for any uncollected amounts.
- Shipping; Risk of Loss. You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the changes applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed. Unless we state otherwise in writing via the Platform, risk of loss or damage to a product passes to you upon delivery of the product to our designated carrier.
- Returns. Please see third party platforms' Return Policies about returning products purchased via their platform.
- Errors. In the event of an error, we reserve the right to correct the error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged.
- No Refunds. Except to the extent refunds are required by law or as stated in our Return Policy for products purchased via our Platform, payments are nonrefundable and there are no refunds. However, we may, in our sole discretion, provide a refund or discount in certain cases.
8. OWNERSHIP; LIMITED LICENSE
The Platform and all content contained therein, including the text, graphics, images, photographs, videos, illustrations, themes, objects, characters (including names), stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, and audio-visual effects, are owned by Swell City or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Platform are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Platform for your own personal, noncommercial use (unless otherwise pre-approved in writing by Swell City for commercial use). Any use of the Platform other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
“Swelldone” and our logos, our product or service names, our slogans and the look and feel of the Platform are trademarks of Swell City and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Platform are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Swelldone or our Platform (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in Swell City’s sole discretion. You understand that Swell City may treat Feedback as nonconfidential.
11. REPEAT INFRINGER POLICY; COPYRIGHT COMPLAINTS
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Platform infringes any copyright that you own or control, you may notify Swell City at firstname.lastname@example.org.
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Platform is infringing, you may be liable to Swell City for certain costs and damages.
12. THIRD-PARTY CONTENT
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Platform (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party providing it. Swell City does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Swell City and its affiliates, and each of our and their respective officers, directors, agents, partners and employees (individually and collectively, the “Swell City Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Platform; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Platform. You agree to promptly notify Swell City Parties of any third-party Claims, cooperate with Swell City Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). You also agree that the Swell City Parties will have control of the defense or settlement, at Swell City's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in any other agreement between you and Swell City or the other Swell City Parties.
14. DISCLAIMERS; ASSUMPTION OF RISK
- Your use of our Platform is at your sole risk. Except as otherwise provided in a writing by us, our Platform and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Swell City does not represent or warrant that our Platform is accurate, complete, reliable, current or error-free. While Swell City attempts to make your use of our Platform safe, we cannot and do not represent or warrant that our Platform or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Platform.
- You understand that the Platform is intended to be used in connection with athletic and fitness activities (including cycling, running and other sports). You expressly acknowledge that engaging in athletic or fitness activities as part of the Platform carries certain inherent and significant risks of property damage, bodily injury or death and that you voluntarily assume all known and unknown risks associated with these activities even if caused in whole or part by the action, inaction or negligence of Swell City or by the action, inaction or negligence of others. You also expressly agree that Swell City does not assume responsibility for the inspection, supervision, preparation, or conduct of any race, competition, contest, group interaction, gathering, or event that utilizes the Platform (whether or not with Swell City's permission).
- Please consult your physician before using the Platform in connection with any athletic and fitness activities. This is especially important for persons over age 35 or persons with pre-existing health problems. Discontinue any use of the Platform or engaging in any such athletic or fitness activities that cause you pain, fatigue, discomfort, nausea, dizziness, or shortness of breath and consult a medical expert. Start slowly and at the level that is appropriate for you. Don’t overexert yourself. Take breaks periodically. Stop and rest if your muscles, joints, or eyes become tired or sore. Do not use the service or engage in any such athletic or fitness activities under the influence of drugs or alcohol, and make sure your balance and physical abilities are sufficient for any movements and activities while using the Platform.
15. LIMITATION OF LIABILITY
- To the fullest extent permitted by applicable law, Swell City and the other Swell City Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if Swell City or the other Swell City Parties have been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
- The total liability of Swell City and the other Swell City Parties for any claim arising out of or relating to these Terms or our Platform, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Platform the 12 months preceding the claim.
- The limitations set forth in this Section 13 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Swell City or the other Swell City Parties or for personal injury, death or property damage caused by the Platform or products purchased through the Platform, or for any other matters in which liability cannot be excluded or limited under applicable law.
To the fullest extent permitted by applicable law, you release Swell City and the other Swell City Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
17. TRANSFER AND PROCESSING DATA
In order for us to provide our Platform, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
18. DISPUTE RESOLUTION; BINDING ARBITRATION
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Swell City and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
- No Representative Actions. You and Swell City agree that any dispute arising out of or related to these Terms or our Platform is personal to you and Swell City and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
- Arbitration of Disputes. Except for small claims disputes in which you or Swell City seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Swell City seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Swell City waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Platform (collectively, “Disputes”), including claims related to privacy and data security, resolved in court. Instead, for any Dispute that you have against Swell City, you agree to first contact Swell City and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Swell City by email at email@example.com. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Swell City cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Toronto, Ontario, Canada unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 18, a “consumer” means a person using the Platform for personal, family or household purposes. You and Swell City agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
- You and Swell City agree that these Terms affect interstate commerce and that the enforceability of this Section 18 will be substantively and procedurally governed by the Commercial Arbitration Act and the International Commercial Arbitration Act, et seq. (the “CAA-ICAA”), to the maximum extent permitted by applicable law. As limited by the CAA-ICAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only 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.
- The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Swell City, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including all information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
- You and Swell City agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Swell City will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Swell City will pay all JAMS fees and costs. You and Swell City agree that the provincial or federal courts of the province of Ontario and Canada sitting in Toronto, Ontario have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
- Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Swell City will not have the right to assert the claim.
- You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 18 by emailing firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
- If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
19. GOVERNING LAW AND VENUE
Any dispute arising from these Terms and your use of the Platform will be governed by and construed and enforced in accordance with the laws of Ontario, except to the extent preempted by Canada federal law, without regard to conflict of law rules or principles (whether of Ontario or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Ontario and Canada, respectively, sitting in Toronto, Ontario.
20. MODIFYING AND TERMINATING OUR PLATFORM
We reserve the right to modify our Platform or to suspend or stop providing all or portions of our Platform at any time. You also have the right to stop using our Platform at any time. We are not responsible for any loss or harm related to your inability to access or use our Platform.
21. MODIFYING THESE TERMS
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Platform or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Platform after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Platform. Unless material changes are made to the arbitration provision under Section 18, you agree that modification of these Terms does not create a new right to opt out of arbitration.
- The failure of Swell City to exercise or enforce any right or provision of these Terms will not operate as a waiver of that right or provision. If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any references to “including” will be deemed to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Swell City will not be liable for any delay or failure of the Platform to the extent caused by circumstances beyond its reasonable control. You agree that communications and transactions between us may be conducted electronically.
- We may supply different or additional terms in relation to some features of our Platform, and those different or additional terms become part of your agreement with us if you use those features. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.