Terms and Conditions of Use
Swhoon is a user based social network for motorsports enthusiasts to share and analyze their lap times, videos and telemetry data. To benefit all Swhoon users, we require that any use of this platform be limited to those related topics. The mobile application, web application or other forms of Swhoon's platform herein referred to as the "App".
In using the App you are deemed to have read and agreed to the following terms and conditions:
The terms "you," "your" and "yours" and refer to all users and/or any visitor to this App. The terms "Swhoon", "its" "we," "us," "our" and "App" refer to Swhoon, Inc. and its subsidiaries and affiliates.
I. Terms of Service
In order to use this App, you must be at least 16 years of age. We require that you provide a valid email address, and any other information needed to complete the enrollment process. Note that by signing up for this App, you acknowledge that the email provided to us will be used for communication to confirm your identity.
Swhoon is not responsible for any loss or damages that are the result of your failure to maintain the security of your account and/or password. You are prohibited from transmitting or uploading any program, code, virus or other item of a destructive nature. Furthermore, you must adhere to all laws of your particular jurisdiction with regarding use. The prohibition noted in these terms is subject to the law of your jurisdiction, including but not limited to copyright laws. You are fully and solely responsible with knowing what content or activity is permitted in your jurisdiction.
Swhoon is and will be the sole arbiter of determining which activity, content, usage is deemed destructive in nature. A breach of any term in this TERMS AND CONDITIONS OF USE is the sole determination of Swhoon and will result in termination of your account up to and including civil liability.
You agree, by using this App you will not:
Use Swhoon to engage in any unapproved commercial activities apart from sanctioned use of Swhoon's App;
Use Swhoon while operating motor vehicles;
To republish any content in print or online;
Create entries or posting for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of Swhoon's App;
Attempt to gain unauthorized access to other computer systems from or through Swhoon's App;
Interfere with another users' use and enjoyment of the App.
Please Note: Any timing functionality of the App should be used off-road only. All use of the App must be in compliance of applicable local laws.
II. Code of Conduct
You agree, by using this App to abide by Swhoon's Code of Conduct. You agree to not:
Use offensive language or slander;
Post false or misleading information; create false users and commit any actions; that are aimed to damage or offend users;
Disclose any confidential or private information of any user;
Share designated trademarked or copyrighted material;
Cause tortious interference with any user;
Remove any copyright, trademark or other proprietary rights notices contained in or on the App; or
Execute any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between servers or any data not intended for you.
III. Rights and Reservations
Swhoon, at any time, may modify or terminate the use of its App to any individual or company for any reason, without notice. Swhoon reserves the right to refuse service to anyone for any reason at any time.
You grant Swhoon, its affiliates, and related entities a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, display, archive, store, publish, transmit, perform, distribute, reproduce and create derivative works from all submissions/data you provide to Swhoon in any form, media, software or technology of any kind now existing or developed in the future. Not limiting the generality of the previous sentence, you authorize Swhoon to include the submissions/data you provide in a searchable format that may be accessed by users of the App. Swhoon may at any time request documentation proof of identification in order to determine account ownership and use. Swhoon may suspend use during such period until a determination can be made as to proper ownership of said account.
You understand that you, and not Swhoon, are entirely responsible for all content that you upload, post, email, transmit or otherwise make available via the App. Swhoon does not control, screen or monitor the content posted to the App by others and, as such, does not guarantee the accuracy, integrity or quality of such content. Swhoon may, in its sole discretion, screen, monitor, refuse or remove any content, or remove any content that violates the Terms and Conditions of Use or is otherwise objectionable. You understand that by using the App and its services, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will Swhoon be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content made available on the App. You agree to bear all risks associated with the use of any content available in connection with the App, including any reliance on the accuracy, completeness, or usefulness of such content.
Swhoon has the right, with no obligation, to remove any submission/data; as well as suspend a user's account that it deems in violation of this Terms and Conditions of Use.
IV. Electronic Communications
The App and services may provide you with the ability to send or post messages to forums or chat rooms, speak via internet voice connections or send similar messages and communications to third party service providers, advertisers, your personal contacts, other members and/or Swhoon. You agree to use communication methods available on the App only to send communications and materials related to the subject matter for which Swhoon provided the communication method, and you further agree that all such communications by you shall be deemed your content and shall be subject to and governed by these Terms and Conditions of Use. By using communications methods available on the App, you agree that: (a) all communications methods constitute public, and not private, means of communication between you and the other party or parties, (b) communications sent to or received from third party service providers, advertisers or other third parties are not endorsed, sponsored or approved by Swhoon (unless expressly stated otherwise by Swhoon), and (c) communications are not pre-reviewed, post-reviewed, screened, archived or otherwise monitored by Swhoon in any manner, though Swhoon reserves the right to do so at any time at its sole discretion. You agree that all notices, disclosures and other communications that we provide to you electronically shall satisfy any legal requirement that such communications be in writing.
V. Disclaimer and Limitation of Liability
THE INFORMATION ON THIS APP IS PROVIDED ON AN "AS IS" BASIS WITH NO PROMISES, REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED). TO THE FULLEST EXTENT PERMITTED BY LAW, SWHOON EXCLUDES ALL REPRESENTATIONS AND WARRANTIES RELATING TO THIS APP AND ITS CONTENTS OR WHICH IS OR MAY BE PROVIDED BY ANY AFFILIATES OR ANY OTHER THIRD PARTY, INCLUDING IN RELATION TO ANY INACCURACIES OR OMISSIONS IN THIS APP AND/OR OTHER SWHOON, Inc. PUBLIC INFORMATION. FURTHERMORE, SWHOON. MAKES NO GUARANTEES AS TO THE APP'S SECURITY, LACK OF INTERRUPTION OF SERVICE, RELIABILITY, OR ERRORS THEREIN.
YOU ACKNOWLEDGE AND AGREE EXPRESSLY AND IMPLIEDLY, TO THE EXTENT PERMITTED BY LAW, THAT SWHOON SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INTANGIBLE DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE APP. FURTHERMORE, TO THE EXTENT PERMITTED BY LAW, SWHOON SHALL NOT BE HELD LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PERSONAL INJURY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ITS APP, ITS SERVICES OR THIS AGREEMENT.
YOU AGREE TO INDEMNIFY AND HOLD SWHOON, ITS SUBSIDIARIES AND AFFILIATES (AS APPLICABLE), AS WELL AS SWHOON'S PARTNERS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, FROM ANY AND ALL CLAIMS OR DEMANDS, INCLUDING ATTORNEYS' FEES, MADE BY ANY THIRD PARTY RELATED TO YOUR BREACH OF THIS AGREEMENT AND INCORPORATED DOCUMENTS OR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY.
YOU ACKNOWLEDGE AND AFFIRM THAT SWHOON DOES NOT AND DID NOT WARRANT THAT THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE APP WILL BE ACCURATE OR RELIABLE. FURTHERMORE, IT DOES NOT WARRANT THAT THE QUALITY OR LEGAL SUFFICIENCY OF ANY INFORMATION OR REPRESENTATION OBTAINED BY YOU THROUGH THE APP, OR THAT ANY ERRORS IN THE APP WILL BE CORRECTED. SWHOON DOES NOT REPRESENT OR WARRANT THE MARKETABILITY OF ANY INTEREST POSTED ON ITS APP. ALL RISKS AND LIABILITY REMAIN WITH USERS AS APPLICABLE LAW DICTATES. THIS APP IS MERELY FOR NETWORKING AND SHARING OF INFORMATION BETWEEN USERS AND NOT A DIRECT MARKET APP.
YOU UNDERSTAND THAT USE OF CERTAIN FEATURES OF THE APPS MAY REQUIRE YOU TO PURCHASE THIRD PARTY EQUIPMENT OR MATERIALS (E.G., CAMERAS, GPS SYSTEMS). WHILE SWHOON MAY RECOMMEND THE EQUIPMENT OR MATERIALS OF CERTAIN THIRD PARTY SUPPLIERS, SWHOON SHALL HAVE NO RESPONSIBILITY FOR YOUR ACQUISITION OR USE OF ANY THIRD PARTY EQUIPMENT OR MATERIALS AND DOES NOT GUARANTEE THAT THIRD PARTY EQUIPMENT OR MATERIALS WILL FUNCTION WITH THE APP OR WILL BE ERROR-FREE.
VI. Waiver and Complete Agreement
This TERMS AND CONDITIONS OF USE represents the entire agreement between Swhoon and the user, and supersedes any and all preceding and contemporaneous agreements between Swhoon and the user. The failure of user to exercise or enforce any right or provision of the TERMS AND CONDITIONS OF USE shall not constitute a waiver of such right or provision. Any waiver of any provision in this agreement will be effective only if in writing and signed by a duly authorized representative of Swhoon, Inc.
VII. Intellectual Property and Customer Content
The name, trademark, symbol, or representation of the Swhoon brand is the sole property of Swhoon, Inc.
Swhoon is a trademarked name and platform. Such trademarks and other marks, logos, and names of Swhoon, used on or in connection with Swhoon may not be used in connection with any product or service that is not under Swhoon ownership or control. Furthermore, such trademarks may not be used in any manner that is likely to cause confusion among users or the general public, or in any manner that disparages or discredits Swhoon. All other trademarks not owned by Swhoon (or its affiliates) that appear on the Apps are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Swhoon, Inc. or its affiliates.
VIII. Cancellation and Termination
Swhoon reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue services or membership offered on or through the App (or any part thereof), including but not limited to the App's features, look and feel, and functional elements and related services at any time, with or without notice. This App is provided at will by Swhoon and there is no expectation of continued use by any member.
IX. Notice for California Members
Under California Civil Code section 1789.3, California Services members are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
X. DMCA Take Down Procedure
Swhoon supports the protection of intellectual property and requires all users of its website to do the same. It is Swhoon's policy to respond to all notices of alleged copyright infringement. In the policy, Swhoon may, in appropriate circumstances and in its sole discretion, disable and/or terminate the accounts of users of Swhoon who are proven to infringe upon the copyrights or other intellectual property rights of Swhoon in accordance with the Digital Millennium Copyright Act of 1998 (DMCA).
Notification of Infringement. Notice is specifically given that Swhoon is not responsible for the content placed on its website by parties other than Swhoon employees or agents. Swhoon endeavors to prevent the placement of illegal or infringing property on its App, but cannot prevent all occasions of said placement. Swhoon appreciates the help of its users in identifying any illegal or infringing property. We request that you provide us with notifications of any infringement of which you have knowledge. Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice (with your personal information removed) may be published publicly on Swhoon’s website.
The claim of infringement must be submitted as a written or emailed notification to:
Email: firstname.lastname@example.org, Subject line: "DMCA Takedown"
Counter-Notification. Alleged parties to the infringement will be provided with an opportunity to provide Counter-Notification. To be effective, a Counter-Notification must be a written communication by the alleged infringer provided to Swhoon (as set forth above). Upon receipt of a Counter Notification:
Swhoon shall promptly provide the complaining party with a copy of the Counter-Notification;
Swhoon shall inform the complaining party that it will replace the removed material or cease disabling access to it within ten (10) business days;
Swhoon shall replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter Notification, provided Swhoon has not received notice from the complaining party that an action has been filed seeking a court order to restrain user from engaging in infringing activity relating to the material on Swhoon's website.
Repeated Violations of this Policy. In accordance with Section 512(i)(1)(a) of the DMCA, Swhoon will, in appropriate circumstances, disable and/or terminate the accounts of users who are repeat violators of this policy.
XI. Dispute Resolution
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to the Swhoon's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), all claims arising out of or relating to this Agreement and your use of the services shall be finally settled by binding arbitration administered by JAMS in accordance with its provisions and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You and Swhoon hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Swhoon is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
XII. Choice of Law and Forum
Any action related to the Terms, Content, the Services, and your relationship with the Swhoon shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to the Section entitled "Dispute Resolution", the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts embracing Redwood City, California and you consent to the exclusive jurisdiction of the federal or state courts embracing Redwood City, California. If any party hereto brings any suit or action against another for relief, declaratory or otherwise, arising out of these Terms and Condition of Use, the prevailing party will have and recover against the other party, in addition to all court costs and disbursements, such sum as the court may adjudge to be reasonable attorneys' fees. Except to the extent prohibited by applicable law, the parties agree that any claim or cause of action arising out of or related to use of the services or the Terms and Conditions of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred.
XIII. Limitation of Liability
Limitation of Liability. To the extent permitted by law, Swhoon’s (or any of its affiliates) aggregate liability to user for this App must be limited to $50,
Disclaimer of Indirect and/or Consequential Damages. In no event will Swhoon (or any of its affiliates) be liable to user (whether in contract, tort (including negligence) or otherwise) for any loss or production, loss of or corruption of data, loss of profits or contracts, loss of business or of revenues, loss of operation time, wasted management time, loss of goodwill or reputation, in each case whether caused directly or indirectly, or to give an account of profits to user,, or for any indirect, incidental, punitive or consequential loss, damage, cost or expense whatsoever and whether or not Swhoon (or any of its affiliates) has been advised of their possibility.
XIV. Modification of the Terms and Services
Certain provisions of the Terms may be supplemented or superseded by expressly designated legal notices or terms located on particular pages on the services. Swhoon reserves the right to update the Terms at any time and for any reason in its sole discretion. Swhoon will notify you of any material changes to the Terms or to any service or other features of the services. By continuing to access or use the services after we have provided you with notice of a modification, you are agreeing to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the services.
Swhoon and its third party service providers may make improvements and/or changes in the services, products, services, mobile applications, features, programs, and prices described at any time and for any reason in its sole discretion. The mobile application may download and install upgrades, updates and additional features in order to improve, enhance, and further develop the services. Swhoon reserves the right at any time to modify or discontinue, temporarily or permanently, the services or any portion thereof with or without notice. You agree that Swhoon shall not be liable to you or to any third party for any modification, suspension or discontinuance of the services
I. Information We Collect
Swhoon collects information about you, including personally identifiable information, if you choose to share it with Swhoon, register an account, or if you track, complete or upload activities using the services. Swhoon also collects information about how you use the services. There are several opportunities for you to share information about yourself and your activities with Swhoon, including your name, email address, equipment usage, activities, routes (including date, time and geo-location information as well as your speed and pace), profile photo and other multimedia.
If you elect to use location-based features via the services, then the physical location of your device will be collected. Swhoon may also collect and upload from your device data such as speed and GPS coordinates. You are able to disallow our use of certain location data through your device or browser settings by disabling “Location Services”.
We may also collect: (i) Non-Identifiable Data. When you interact with the Company through the Services, we receive and store certain personally non-identifiable information. Such information, which is collected passively using various technologies, cannot presently be used to specifically identify you. The Company may store such information itself or such information may be included in databases owned and maintained by the Company, affiliates, agents or service providers. The Services may use such information and pool it with other information to track, for example, the total number of visitors to our App, the number of visitors to each page of our App, and the domain names of our visitors’ Internet service providers. It is important to note that no Personal Data is available or used in this process. (ii) Aggregated Personal Data. In an ongoing effort to better understand and serve the users of the Services, the Company often conducts research on its customer demographics, interests and behavior based on the Personal Data and other information provided to us. This research may be compiled and analyzed on an aggregate basis, and the Company may share this aggregate data with its affiliates, agents and business partners. This aggregate information does not identify you personally. The Company may also disclose aggregated user statistics in order to describe our services to current and prospective business partners and to other third parties for other lawful purposes.
II. Our Use of Your Personal Data and Other Information
III. Use of Cache Data
Our App, like most browsers and applications are initially set up to accept “Cache Data.” Cache is a component of your mobile device that transparently stores data for record-keeping purposes. Cache Data does not identify users, but does identify your mobile device. If you prefer, you can program your mobile device so that it does not store this information while utilizing the App. Please note that certain App features may only be available through the collection of Cache Data. We may use such data to assist in data collection and to track App usage and trends to help us better serve you. We also permit third parties who have entered into confidentiality agreements to access such data to help us monitor use of the App for fraud or any other activity that does not comply with applicable laws.
IV. Our Disclosure of Your Personal Data and Other Information
Swhoon is not in the business of selling your information. We consider this information to be a vital part of our relationship with you. There are, however, certain circumstances in which we may share your Personal Data with certain third parties without further notice to you, as set forth below:
Business Transfers: As we develop our business, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, dissolution or similar event, Personal Data may be part of the transferred assets.
Agents, Consultants and Third Parties: Swhoon, like many businesses, sometimes hires other companies to perform certain business-related functions. Examples of such functions include mailing information, maintaining databases and processing payments. When we employ another entity to perform a function of this nature, we only provide them with the information that they need to perform their specific function.
Legal Requirements: The Company may disclose your Personal Data if required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, (ii) protect and defend the rights or property of the Company or (iii) act in urgent circumstances to protect the personal safety of users of the Services or the public.
V. Retention of Information
When you delete your user account, certain personal information will be immediately de-associated with the account and deleted, such as your e-mail, name, address, and profile photo, if you had chosen to provide this information. Additionally, your Third-Party Account information will be immediately de-associated with your account. All of your activities and kudos will be de-identified, made private and no longer associated with your personal information. Your comments will be deleted and your account will not be associated with any clubs you had previously joined. We may, however, keep a record of your deletion for up to 30 days following your deletion of an account. Additionally, we may keep system logs, which may be associated with your account for up to 30 days following your deletion of an account.
When you delete your account, we may retain geolocation information to continue to improve the Services. Upon deletion of your account, however, this information cannot be viewed by other users and will be de-associated with your name and other identifiers.
The Company takes reasonable steps to protect the Personal Data provided via the Services from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please be reminded; however, that no Internet or email transmission or data storage is ever fully secure or error free. In particular, email sent to or from the Services may not be secure. Therefore, you should take special care in deciding what information you send to us. Please keep this in mind when disclosing any Personal Data to Swhoon via the Internet.
IX. California Privacy Rights
California Civil Code Section 1798.83 entitles California customers to request information concerning whether a business has disclosed personal information to any third parties for the third parties’ direct marketing purposes. California customers who wish to request further information about our compliance with this law or have questions or concerns about our privacy practices and policies may contact us, in writing, at 221 Hillsdale Way, Redwood City, CA 94062