Terms & Conditions

Swell Service Terms of Use (“Agreement”)

Please read these Terms of Use (“Agreement”, “Terms of Use”) carefully before using Swell Service (“the Site” or “the App”) which can be found online at www.swellservice.com and operated by Swell Service limited (“us”, “we”, or “our”). This Agreement sets forth the legally binding Terms of Use for your use of the App at www.swellservice.com

By accessing or using the Site in any manner, including, but not limited to, visiting or browsing the Site or contributing content or other materials to the Site, you agree to be bound by these Terms of Use. Capitalized terms are defined in this Agreement.

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Swell Service without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

Acceptance of Terms of Use and Amendments

Each time you use or cause access to this web site, you agree to be bound by these Terms of Use, and as amended from time to time with or without notice to you. In addition, if you are using a particular service on or through this web site, you will be subject to any rules or guidelines applicable to those services and they shall be incorporated by reference into these Terms of Use. Please see our Privacy Policy, which is incorporated into these Terms of Use by reference.

Our Service

Our web site and services provided to you on and through our web site on an “AS IS” basis. Furthermore, you agree that the owners of this web site exclusively reserve the right and may, at any time and without notice and any liability to you, modify or discontinue this web site and its services or delete the data you provide, whether temporarily or permanently. We shall have no responsibility or liability for the timeliness, deletion, failure to store, inaccuracy, and links to download sites or improper delivery of any data or information. Moreover, due to the nature of our services we do not offer refunds.

Please Note: We do not host any of these sites and will not be responsible for any apps, data, content or etc. that is hosted or downloaded from any 3rd party sites and/or additional apps. Every user must be sure to conduct their own due diligence prior to using any services/products of outside sources.

Your Responsibilities and Registration Obligations

In order to use this web site, you must register on our site, agree to provide truthful information when requested, and be at least the age of thirteen (13) or older. When registering, you explicitly agree to our Terms of Use and as may be modified by us from time to time and available here.

Privacy Policy

Registration data and other personally identifiable information that we may collect is subject to the terms of our Privacy Policy.

Use of Mobile Devices

While using the site on mobile devices you may be prompted to use our services such as sending out an SMS invite or message to a friend that could potentially create charges from your service carrier that may cost you extra money, since mobile carrier rates may be applicable for you to use such features like SMS. Moreover in those cases, the Service will attempt to remind you before any messages are sent out of the possibility of extra charges. It is your responsibility and decision to use such services like SMS or email and any such charges you may incur we are not the responsibility of, and not reimbursable by, Swell Service.

Registration and Password

You are responsible to maintain the confidentiality of your password and shall be responsible for all uses via your registration and/or login, whether authorized or unauthorized by you. You agree to immediately notify us of any unauthorized use or your registration, user account or password.

Your Conduct

You agree that all information or data of any kind, whether text, software, code, music or sound, photographs or graphics, video or other materials (“Content”), publicly or privately provided, shall be the sole responsibility of the person providing the Content or the person whose user account is used. You agree that our web site may expose you to Content that may be objectionable or offensive. We shall not be responsible to you in any way for the Content that appears on this web site nor for any error or omission.

You explicitly agree, in using this web site or any service provided, that you shall not:

(a) provide any Content or perform any conduct that may be unlawful, illegal, threatening, harmful, abusive, harassing, stalking, tortuous, defamatory, libelous, vulgar, obscene, offensive, objectionable, pornographic, designed to or does interfere or interrupt this web site or any service provided, infected with a virus or other destructive or deleterious programming routine, give rise to civil or criminal liability, or which may violate an applicable local, national or international law;

(b) impersonate or misrepresent your association with any person or entity, or forge or otherwise seek to conceal or misrepresent the origin of any Content provided by you;

(c) collect or harvest any data about other users;

(d) provide or use this web site and any Content or service in any commercial manner or in any manner that would involve junk mail, spam, chain letters, pyramid schemes, or any other form of unauthorized advertising without our prior written consent;

(e) provide any Content that may give rise to our civil or criminal liability or which may constitute or be considered a violation of any local, national or international law, including but not limited to laws relating to copyright, trademark, patent, or trade secrets.

Submission of Content on this Site

By providing any Content to our web site you agree to all of the following statements listed below:

(a) you agree to grant to us a worldwide, royalty-free, perpetual, non-exclusive right and license (including any moral rights or other necessary rights) to use, display, reproduce, modify, adapt, publish, distribute, perform, promote, archive, translate, and to create derivative works and compilations, in whole or in part. Such license will apply with respect to any form, media, technology known or later developed;

(b) you warrant and represent that you have all legal, moral, and other rights that may be necessary to grant us with the license set forth in this Section 7;

(c) you acknowledge and agree that we shall have the right (but not obligation), in our sole discretion, to refuse to publish or to remove or block access to any Content you provide at any time and for any reason, with or without notice.

Third Party Services

Goods and services of third parties may be advertised and/or made available on or through this web site. Representations made regarding products and services provided by third parties are governed by the policies and representations made by these third parties. We shall not be liable for or responsible in any manner for any of your dealings or interaction with third parties.

Indemnification

You agree to indemnify and hold us harmless, our subsidiaries, affiliates, related parties, officers,directors, employees, agents, independent contractors, advertisers, partners, and co- branders from any claim or demand, including reasonable attorney’s fees, that may be made by any third party, that is due to or arising out of your conduct or connection with this web site or service, your provision of Content, your violation of this Terms of Use or any other violation of the rights of another person or party.

DISCLAIMER OF WARRANTIES

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THIS WEB SITE AND ANY SERVICES OR CONTENT PROVIDED (THE “SERVICE”) IS MADE AVAILABLE AND PROVIDED TO YOU AT YOUR OWN RISK. IT IS PROVIDED TO YOU “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, IMPLIED OR EXPRESS, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY, IMPLIED OR EXPRESS, THAT ANY PART OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, TIMELY, SECURE, ACCURATE, RELIABLE, OF ANY QUALITY, NOR THAT ANY CONTENT IS SAFE IN ANY MANNER FOR DOWNLOAD. YOU UNDERSTAND AND AGREE THAT NEITHER US NOR ANY PARTICIPANT IN THE SERVICE PROVIDES PROFESSIONAL ADVICE OF ANY KIND AND THAT USE OF SUCH ADVICE OR ANY OTHER INFORMATION IS SOLELY AT YOUR OWN RISK AND WITHOUT OUR LIABILITY OF ANY KIND.

Some jurisdictions may not allow disclaimers of implied warranties and the above disclaimer may not apply to you only as it relates to implied warranties.

LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSS (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR ARISING OUT OF

(I)THE USE OF OR THE INABILITY TO USE THE SERVICE,

(II) THE COST TO OBTAIN SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ANY TRANSACTION ENTERED INTO ON THROUGH THE SERVICE,

(III)UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA TRANSMISSIONS,

(IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR

(V) ANY OTHER MATTER RELATING TO THE SERVICE.

In some jurisdictions, it is not permitted to limit liability and therefore such limitations may not apply to you.

Regards to Communication

We do not make any representations or warranties as to the truth or accuracy of any statement made or materials posted on or through our site, forum, bulletin board, chat room, or any other user interactive area of our site. You agree and acknowledge that you assume the risk of any actions you take in reliance upon the information that may be contained in our site, forum, bulletin board, chat room, or any other user interactive area of our site.

We do not endorse or lend any credence for any statements that are made by any participant in our forum, bulletin board, chat room, or any other user interactive area of our site. Any opinions or views expressed by our site, forum, bulletin board, chat room, or any other user interactive area of our site participants are their own. We do not endorse or support or otherwise give any credence or reason for reliance on any such statements or opinions. You are fully responsible for your own statements and materials that you post in our site, forum, bulletin board, chat room, or any other user interactive area of our site and any consequences, whether or not foreseen, to any party who may rely upon these statements. You agree that you will not take any action directed towards attempting to hold us responsible for any such materials or statements. As a participant in our site, forum, bulletin board, chat room, or any other user interactive area of our site, you agree that we may remove any materials from our site, forum, bulletin board, chat room, or any other user interactive area of our site for any reason, in our sole discretion, or for no reason at all. This includes material which is disruptive, abusive, offensive, illegal, vulgar, pornographic, or any other material. You hold us harmless from and against any damage you or others may suffer as a result of our removal of any content from our forum, bulletin board, chat room, or any other user interactive area of our site or from the discontinuance of our forum, bulletin board, chat room, or any other user interactive area of our site at any time.

Important Communication Note: When opting to do shares through our sites social accounts we own based on the service you have subscribed to when you placed an order for your campaign may be shared through third party accounts. Moreover, please note since when shares are conducted through a 3rd party service we will not have the ability to access the amount of friends/followers one may have.

Arbitration

For any disputes or discrepancies you may have with Swell Service, you agree to first contact us and attempt to resolve the dispute with us informally. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the Australian Centre for International Commercial Arbitration Limited.

The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of

whom shall preside jointly over the matter. The arbitrator shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copy no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

Reservation of Rights

We reserve all of our rights, including but not limited to any and all copyrights, trademarks, patents, trade secrets, and any other proprietary right that we may have in our web site, its content, and the goods and services that may be provided. The use of our rights and property requires our prior written consent. We are not providing you with any implied or express licenses or rights by making services available to you and you will have no rights to make any commercial uses of our web site or service without our prior written consent.

Notification of Copyright Infringement

If you believe that your property has been used in any way that would be considered copyright infringement or a violation of your intellectual property rights, our copyright agent may be contacted at the following address:

App: Swell Service

Website: www.swellservice.com

SWELL SERVICE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

Swell Service takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or transmits using our images, products or services. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose.

Applicable Law

You agree that this Terms of Use and any dispute arising out of your use of this web site or our products or services shall be governed by and construed in accordance with local laws where the headquarters of the owner of this web site is located, without regard to its conflict of law provisions. By registering or using this web site and service you consent and submit to the exclusive jurisdiction and venue of the county or city where the headquarters of the owner of this web site is located.

1.  SWELL SERVICE SERVICE DESCRIPTION

1.1 The Swell Service Service will be reviewed and updated from time to time. In addition to the points set out below, certain portion(s) of the Swell Service Service may be separately described on the Swell Service Platform.

1.2 A Job Poster with a requirement for a service to be provided or a good to be acquired (1) creates and account with Swell Service and (2) posts an accurate and complete description of the good to be acquired or service to be provided (including, but not limited to, the payment offered to the Swell Service  service provider) (“Posted Task”). Posted Tasks are subject to further terms set out for Posting Tasks and Making Offers below.

1.3 A Swell Service Worker with an ability to perform services and/or to provide the goods (1) creates an account with Swell Service.

1.4. If a Swell Service Worker desires to provide services or sell goods to a Job Poster, the Swell Service Worker must make an offer in response to the Posted Task (“Offer”). By making an Offer the Swell Service Worker confirms that s/he is legally entitled to and capable of supplying the goods or services described in the Posted Task. Offers are subject to further terms set out for Posting Tasks and Making Offers below.

1.5 If a Job Poster in any way updates a Posted Task after it has been published on the Swell Service Platform and before an offer has been accepted, then Swell Service may, at its discretion, cancel all Offers for that Posted Task that were made prior to the update and recommence the offer process.

1.6 If the Job Poster agrees to a Swell Service Worker’s offer, the Job Poster will accept that Swell Service Worker’s Offer by using the functionality on the Swell Service Platform and paying the agreed price into the payment facility accessible via the Swell Service Platform.

1.7  The Swell Service Worker and Job Poster use a public question and answer feature on the Swell Service Platform to communicate directly about posted requests for services or goods. Once a Job Poster has accepted an offer from a Swell Service Worker, the Job Poster and the Swell Service Worker can communicate privately using a Swell Service private messaging service. Each time a Swell Service User receives a message from the Swell Service messaging service, a notification may be sent to the User via their currently active communication channel.

1.8 Once a Job Poster has accepted an offer from an Swell Service Worker then the Job Poster and the Swell Service Worker will be deemed to have entered into a separate contract under which the Job Poster agrees to purchase, and the Buyer agrees to provide the Job Poster with the services or goods (“Task Contract”).

1.9 The terms of the Task Contract incorporate the terms of this Agreement (to the extent they apply to the Job Poster and the Swell Service Worker) and any additional terms and conditions agreed between the Job Poster and the Swell Service Worker, including the description and price of the services or goods to be provided. You agree not to enter into any contractual provisions in a Task Contract that conflict with this Agreement. The terms of this Agreement incorporated into a Task Contract take priority over any other terms agreed between a Job Poster and a Swell Service Worker in the Task Contract to the extent of any inconsistency.

1.10 The Swell Service Worker must provide the services or goods to the Job Poster in accordance with the Task Contract, unless the services, goods or transaction is prohibited by law, by this Agreement, an agreement between the User and a Third Party Provider or by any of our Policies.

1.11 Once a Swell Service Worker has provided the goods or services requested by a Job Poster in accordance with the Task Contract, the Swell Service Worker must provide notice that the task is complete by using the Swell Service Platform functionality. It will be material breach of this Agreement and the Task Contract if a Swell Service Worker provides notice that a task is complete for a particular Posted Task without having provided the relevant goods or services. If s/he is supplying goods, a Swell Service Worker must not provide notice that a task is complete until the goods have actually been delivered to the address specified by the Job Poster.

1.12 Once a Swell Service Worker has provided the relevant goods or services in accordance with the Task Contract and has provided notice that the task is complete relating to a particular Posted Task, the Job Poster must pay for the agreed price for the goods or services supplied to the Swell Service Worker by using the Swell Service Platform functionality. It will be material breach of this Agreement and the Task Contract if, after an Swell Service Worker has provide the relevant goods or services in accordance with the Task Contract and provided notice that a task is complete for a particular Posted Task, the Job Poster fails to release the agreed price.

1.13 Once the Job Poster has released the payment, the fee will be paid to the Swell Service Worker after the deduction of the relevant fees which is 10% of the total cost.

1.14 Once a transaction is concluded, both the Swell Service Worker and Job Poster are strongly encouraged to complete an Swell Service service review using any feedback features on the Swell Service Platform. Swell Service will, from time to time, contact You to remind You to complete an Swell Service service review.

1.15 The Swell Service Platform may from time to time include location/ map-based functionality. The Swell Service Platform may display the location of Job Posters and Swell Service Workers to persons browsing the Swell Service Platform. Each Job Poster will be asked to provide the street and suburb where the task is to be performed or the goods are to be delivered. A Job Poster should never disclose personal details such as Job Poster’s full name, street number, phone number or email address in a Posted Task or in any other public communication on the Swell Service Platform.

2. PAYMENT, REFUNDS AND CREDIT

2.1. Where a Job Poster pays an agreed price for goods or services in respect of a Posted Task (“Task Payment”) that Task Payment will be used to pay the Swell Service Worker and Swell Service in accordance with this Agreement. If that payment cannot be made for any reason the Task Payment moneys will be handled in accordance with Swell Service resolution process.

2.2. If the Job Poster and the Swell Service Worker mutually agree to cancel the Task Contract or if, following reasonable attempts by a Job Poster to contact an Swell Service Worker to perform the Task Contract, Swell Service is satisfied that the Task Payment should be refunded and there is no dispute between the Job Poster and the Swell Service Worker, then Swell Service will refund the Task Payment back into the Job Poster’s nominated account.

2.3. If, for any reason, the Task Payment cannot be transferred or otherwise made to the Swell Service Worker or the Job Poster (as the case may be) or no claim is otherwise made for a Task Payment, the Task Payment will remain in the Swell Service account until paid or otherwise for up to three months from the date the Job Poster initially paid the Task Payment into the Swell Service.

2.4. Following the 3 months referred to in clause 2.3 and provided there is still no dispute in respect of the Task Payment the Task Payment will be automatically converted into Swell Service credit and credited to the relevant Job Poster or Swell Service Worker (“Holder”). The credit will be to the account of the Job Poster except where the Swell Service Worker has claimed the Task Contract has been completed but for whatever reason the Task Payment was not able to be transferred.

2.5.Credit on an Swell Service gift card or any other form of Swell Service card containing credit for use on the Swell Service Platform (“Store Value Card”) is also a form of Swell Service credit that can be held by a holder (also a “Holder”). Store Value Cards cannot be replaced, exchanged or reloaded and may only be used in the purchase of tasks via the Swell Service Platform in accordance with this Agreement.

2.6 Swell Service has the right to hold any Task Payment the subject of a dispute and until the dispute has been resolved.

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3. INSURANCE

3.1.Swell Service may offer its Users an opportunity to obtain insurance for Swell Service Users. All such insurance is offered by a third party. Swell Service confirms that all insurance policies are Third Party Services and subject to further terms set out for Third Party Services. Swell Service may elect to obtain its own insurance that may provide cover for Swell Service Users.

3.2.Swell Service does not represent that the insurance offered via the Swell Service Platform is adequate or appropriate for any particular User. Each User must make its own enquiries about whether any further insurance (such as workers compensation insurance) is required.

3.3.The Swell Service Worker acknowledges and agrees that in the event that a Job Poster makes a claim relating to any services performed and/or goods provided by an Swell Service Worker, and the insurance taken out by Swell Service (if any) responds to that claim then this clause applies. Swell Service may elect to make a claim under such policy and if the claim is successful, any excess payable in respect of the claim may be recovered by Swell Service from the Swell Service Worker. Where Swell Service makes a claim and the insurer assesses that the Swell Service Worker is responsible, Swell Service is entitled to rely on that assessment. If you do not pay any excess, Swell Service may also elect to set this amount off against future moneys it may owe to the Swell Service Worker.

 

Miscellaneous Information

(i) In the event that this Terms of Use conflicts with any law under which any provision may be held invalid by a court with jurisdiction over the parties, such provision will be interpreted to reflect the original intentions of the parties in accordance with applicable law, and the remainder of this Terms of Use will remain valid and intact;

(ii) The failure of either party to assert any right under this Terms of Use shall not be considered a waiver of any that party’s right and that right will remain in full force and effect;

(iii) You agree that without regard to any statue or contrary law that any claim or cause arising out of this web site or its services must be filed within one (1) year after such claim or cause arose or the claim shall be forever barred;

(iv) We may assign our rights and obligations under this Terms of Use and we shall be relieved of any further obligation. This Agreement was last modified on May 01, 2015