Our terms and conditions include our Accepted Use and Customer Agreement.
Last updated: October 2023
1.1 These Acceptable Use Terms (“Terms”) apply between you, the User of this website www.swallow.app (“Website”) and Swallow’s mobile and web applications (“Apps”) through which Swallow’s pricing operations platform and API services (together the “Swallow Services”) are provided, and Llow Group Limited, trading as Swallow, a company incorporated in England and Wales with registered number 14334541 and with its registered address at Arquen House, 4-6 Spicer Street, St Albans, AL3 4PQ, United Kingdom (“Swallow” or “we”). Swallow is the owner and operator of the Website and Apps.
WHERE YOU ARE A US-BASED USER, THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND SWALLOW ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN SECTION 7.3 OF THESE TERMS.
1.2 Please read these Terms carefully, as they affect your legal rights. Your agreement to comply with and be bound by these Terms is deemed to occur upon your first use of the Website and/or Apps. If you do not agree to be bound by these Terms, you should not use the Website or Apps.
1.3 In these Terms, “User” or “Users” means anyone that accesses the Website or Apps, and “you” shall be construed accordingly.
1.4 The Website and Apps use cookies and similar technologies. By continuing to use the Website and/or Apps you are agreeing to our use of cookies in accordance with our Cookie Policy.
1.5 These Terms must be read in conjunction with the Swallow Privacy Policy.
2.1 All Swallow Content, except for content you upload, included on the Website and Apps, is the property of Swallow, our affiliates or other relevant third parties. In these Terms, “Swallow Content” means any text, graphics, images, audio, video, software, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on or forms part of the Website or Apps. By continuing to use the Website and/or Apps, you acknowledge that such Swallow Content is protected by copyright, trademarks, database rights and other intellectual property rights. Nothing on the Website or Apps or these Terms shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed on the Website or Apps without Swallow’s prior written permission.
2.2 You must not otherwise reproduce, modify, copy, distribute or use for commercial purposes any Swallow Content without the express written permission of Swallow.
2.3 As part of the Swallow Services, Swallow may make its API available to you in which case you agree to make calls to such API only to the extent necessary to access and use the Swallow Services. All use of the Swallow Services, including use of the API, shall be subject to reasonable use as determine by Swallow in its sole discretion.
2.4 You shall at all times comply with the Swallow support documentation and Swallow API documentation. All use of the Swallow brands, names, logos and assets must be pre-approved by Swallow in writing; please contact Swallow at contact@llow.io for this consent prior to any such use.
You will not:
a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Swallow Services, the Website or Apps unless such restriction is not permitted by law;
b) provide or resell the Swallow Services;
c) modify, translate, or create derivative works based on the Swallow Services, Website or Apps;
d) attempt to exceed or circumvent any express or implied limitations on use of the Swallow Services, including, but not limited to, in relation to the number of calls to the API or related use thereof, storage and data enrichment functionality, such limits to be set by Swallow from time to time and in its sole discretion and where such limitations may depend on the type of user access you or your company has purchased;
e) use the Swallow Services, Website or Apps for timesharing or service bureau purposes or otherwise for the benefit of a third party;
f) remove any proprietary notices or labels from the Swallow Services, Website, Apps or any materials or documents it publishes or makes available from time to time;
g) permit or facilitate any third party to access or use the Swallow Services, Website or Apps or use or access the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
h) attempt to circumvent security, license control or other protection mechanisms, or tamper with, probe, scan, test the vulnerability of or hack into or otherwise disrupt the Swallow Services, Website or Apps or any associated website, computer system, server, router or any other internet-connected device, including, without limitation, by overloading it or them with data or calls to the API;
i) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Swallow Services, Website or Apps (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorized use contained in these Terms;
j) upload, store, post, email, transmit or otherwise make available by any means any virus, malware, Trojan horses, or any other similar harmful software;
k) upload, store post, email, transmit or otherwise make available by any means any content or data that infringes any intellectual property rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited;
l) impersonate any person or entity or otherwise misrepresent your relationship with any person or entity;
m) engage in any fraudulent activity or further any fraudulent purpose;
n) provide false identity information;
o) share passwords or API keys or otherwise allow any other person to access the Swallow Services or API under your account or using your API key;
p) attempt to gain or enable unauthorized access to the Swallow Services, Website or Apps or their related systems or networks, and will not permit any third party to do any of the foregoing.
4.1 The Swallow Services and any online facilities, tools, services or information that Swallow makes available through the Website or Apps, and the Website and Apps themselves are each provided "as is" and on an "as available" basis. We give no warranty that the Swallow Services, Website or Apps will be free of defects and/or faults. To the maximum extent permitted by the law, we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility, and satisfactory quality. Swallow is under no obligation to update information on the Website or Apps.
4.2 Whilst Swallow uses reasonable endeavours to ensure that the Website, Apps and API are secure and free of errors, viruses, and other malware, we give no warranty or guaranty in that regard and all Users take responsibility for their own security, that of their personal details and their computers.
4.3 Swallow accepts no liability for any disruption or non-availability of the Swallow Services, Website or Apps.
4.4 Swallow reserves the right to alter, suspend or discontinue any part (or the whole of) the Swallow Services, Website and/or App, including, but not limited to, any products and/or services available therein. These Terms shall continue to apply to any modified version of the Website or Apps unless it is expressly stated otherwise.
5.1 Nothing in these Terms will limit or exclude either party’s liability:
a) for death or personal injury resulting from their negligence;
b) for fraud or fraudulent misrepresentation; or
c) in any way that is not permitted under applicable law.
5.2 Swallow will not be liable to you in respect of any losses arising out of events beyond our reasonable control.
5.3 To the maximum extent permitted by law, Swallow accepts no liability for any of the following:
a) any business losses, such as loss of profits, income, revenue, anticipated savings, business, contracts, goodwill or commercial opportunities;
b) loss or corruption of any data, database, or software; and/or
c) any special, indirect, or consequential loss or damage.
6.1 These Terms may be varied by us from time to time. Such revised terms will apply to Swallow Services, the Website and Apps from the date of publication. Users should check the Terms regularly to ensure familiarity with the then current version.
6.2 If any court or competent authority finds that any provision of these Terms (or part of any provision) is invalid, illegal, or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Terms will not be affected.
6.3 These Terms shall be governed by and interpreted according to the law of England and Wales and all disputes arising under these Terms (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts. Notwithstanding the foregoing, if You are located in the United States then the Swallow Terms are governed by the laws of the State of Delaware and you are expressly agreeing to the following mandatory arbitration of disputes:
a) These Terms and any separate agreements whereby we provide you Swallow Services, and any dispute between you and Swallow, shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that this section is found not to apply to You or to a particular claim or dispute, either as a result of your decision to opt-out of the Arbitration Procedures or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Swallow must be resolved exclusively by a state or federal court located in the State of Delaware, except that you or we are permitted to: (i) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure and if such court is located in the United States of America; (ii) bring claims for injunctive relief in any court having jurisdiction over the parties; or (iii) seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding;
b) Except if you opt-out or for disputes relating to your or our intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents), you agree that all disputes between you and Swallow (whether or not such dispute involves a third party) arising out of or relating to these Terms, the Swallow Services, and/or our Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in the State of Delaware under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and you and we hereby expressly waive trial by jury. You and we shall appoint as sole arbitrator a person mutually agreed by you and us or, if you and we cannot agree within thirty (30) days after either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys' fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms;
c) Any claims brought by you or Swallow must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You agree and acknowledge that neither you nor we will participate in a class action or class-wide arbitration for any claims covered by these Terms. You hereby waive any and all rights to bring any claims related to these Terms and/or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You understand and agree that you may bring claims only on your own behalf;
d) You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days after the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your account information, if applicable, to which the opt-out applies and a clear statement that you want to opt out of this Agreement to Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: Llow Group Ltd, Arquen House, 4-6 Spicer Street, St Albans, AL3 4PQ, United Kingdom, and email contact@llow.io.
e) Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or Website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Swallow prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our Website and shall not be effective as to any claim that was filed in a legal proceeding against Swallow prior to the effective date of removal; and
f) This Agreement to Arbitrate will survive the termination of your relationship with us.
Address: Llow Group Ltd, Arquen House, 4-6 Spicer Street, St Albans, AL3 4PQ, United Kingdom.
Except where otherwise required by applicable law or regulations, all communication and documentation sent to you by Swallow will be in English. You may communicate with us in English.
For more information about this Website and our Apps, please contact us by email: contact@llow.io.
Last updated: October 2023
This Swallow Customer Agreement sets out the terms and conditions on which Llow Group Limited, trading as Swallow, whose registered office is at Arquen House, 4-6 Spicer Street, St Albans, AL3 4PQ, United Kingdom ("We", "Us" or “Swallow”) licenses its pricing operations platform and API services (together the “Swallow Services”) to You (as defined below).
THIS SWALLOW CUSTOMER AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE WHICH REQUIRES THAT, WHERE YOU ARE A US CUSTOMER, YOU AND SWALLOW ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT, AND LIMITS CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN CLAUSE 18.8 OF THIS SWALLOW CUSTOMER AGREEMENT.
By accepting the Swallow Customer Agreement, either by signing up to receive the Swallow Services online, by separate contract between You and Us or by starting to use or authorizing any User (as defined below) to access or use any of the Swallow Services, or by otherwise indicating your acceptance of the Swallow Customer Agreement, including by way of a Free Trial (as defined below), You:
- agree and understand that, from the Effective Date (as defined below), a legally binding contract will exist between the You and Us for the Swallow Services which will be governed by terms of this Swallow Customer Agreement;
- warrant and represent that where You are entering into the Swallow Customer Agreement on behalf of another legal entity such as a company or organization ("Entity"), You are agreeing and entering on behalf of that Entity and You are authorized to bind that Entity to this Swallow Customer Agreement, and any reference to "You" and "Your" shall additionally mean that Entity;
- warrant and represent that You will use the Swallow Services strictly for business purposes and not in a capacity as a consumer, and that Swallow will not be responsible or liable for any non-business use of the Swallow Services by You or Your Users; and
- procure that Your Users will comply with the terms of this Swallow Customer Agreement, the Acceptable Use Policy, and agree that You will remain responsible for such Users’ compliance.
We may modify the terms of the Swallow Customer Agreement from time to time by updating the terms and conditions on the website or by direct written notice to You. If a modification is material, as reasonably determined by Swallow in its sole discretion, then We will make commercially reasonable efforts to notify You of the change. Continued use of Swallow Services will constitute acceptance of the new Swallow Customer Agreement. If You do not agree with the updated terms of the Swallow Customer Agreement, You must immediately stop using Swallow Services and ensure Your Users also stop using Swallow Services.
1.1. The following words and expressions will have the following meanings:
“Swallow API” means the application programming interface developed and enabled by Swallow that permits You and Your Users to access and use certain functionality provided by the Swallow Services subject to this Swallow Customer Agreement and the Documentation;
“Swallow Applications” means Swallow’s web application and/or mobile applications through which the Swallow Services are provided, including any software contained therein;
“Swallow Content” means all data, information and material owned by or licensed to Swallow and comprised within the Swallow Services and on the Swallow Applications, but excluding Customer Data;
“Swallow Services” means the pricing operations platform and services made available via the Swallow Applications, including access to the Swallow API if applicable and any related materials provided by Swallow for Your use as part of the Swallow Services as provided in any Documentation;
“CCPA” means the California Consumer Privacy Act of 2018;
“Confidential Information” means all information (however recorded or preserved) disclosed by a party, whether before or after the Effective Date including any information which is marked as confidential or has otherwise been indicated as being confidential, or (i) information relates to the business, affairs, customers, clients, licensors, suppliers, new products, plans, research, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and (ii) information relating to the operations, processes, product information, ideas, formulas, source code, data, Intellectual Property Rights or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs or in relation to Swallow, any of its third party licensors;
“Customer” means a sole trader, corporate entity or organization, that enters the Swallow Customer Agreement with Swallow;
“Customer Data” means all data, information and material that You and/or Your Users input or upload to the Swallow Services or transmit through the Swallow Services, including Personal Data.
“Data Protection Legislation” means the EU GDPR, European Directive 2002/58/EC, the UK DPA 2018, the CCPA and any other legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them, and all other applicable laws relating to processing of Personal Data and privacy that may exist in any relevant jurisdiction;
“Documentation” means any User guides and other documentation for the Swallow Services that Swallow makes available to Customers and Developers from time to time, including, without limitation, Swallow API documentation;
“Effective Date” means the date on which You gain access to and start using the Swallow Services and/or accept this Swallow Customer Agreement, including under any Free Trial or the Developer Program, upon which date the terms of this Swallow Customer Agreement shall apply;
"EU GDPR” means the General Data Protection Regulation 2016/679;
"Fees" means the fees payable by You for the Swallow Services in accordance with the Plan;
"Free Trial” means a potentially limited period during which Swallow may offer some or all of the Swallow Services free of any Fees and subject to usage restrictions, as determined by Swallow in its sole discretion. On expiry of the Free Trial, You will be liable for all Fees set out in the chosen Plan. In the absence of an expiry date of a Free Trial, You may continue to receive some or all of the Swallow Services until such time as Swallow (in its sole discretion) requires You to upgrade to a paid-for Plan or removes, suspends or terminates Your access to the Swallow Services, for any reason and without notice;
"Initial Term" means the fixed duration immediately following Your acceptance of the Customer Agreement or, where a Free Trial has been offered, the expiry or end of that Free Trial, in which You agree to receive the Swallow Services and pay the Fees, being either one (1) month or twelve (12) months and as set out in the Plan;
"Intellectual Property Rights" means patents, patentable rights, copyright, design rights, rights in computer software, utility models, trademarks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in get-up, goodwill, rights to sue for passing off or unfair competition, and rights to preserve the confidentiality of information (including know-how and trade secrets), and any and all other intellectual and industrial property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
“Malicious Software” means any viruses, malware, Trojan horses, or any other similar harmful software;
“Personal Data” shall have the meaning attributed to it in the applicable Data Protection Legislation;
"Plan" means the subscription plan incorporating the level of support provided, features and relevant data limits that are made available as part of the Swallow Services and as chosen by You during the sign-up process or as amended by You in Your account section or manually by Swallow pursuant to Your request;
“Renewal Term” means the fixed duration immediately following the Initial Term in which You are granted the right to access the Swallow Services and pay the Fees, and which is of equal duration to the Initial Term;
“Seats” means the maximum number of seats available for Users authorized to use the Swallow Services made available by Swallow from time to time under the Swallow Customer Agreement and in accordance with the Plan;
“Term” means the duration of the Swallow Customer Agreement as defined under Clause 3;
“Third Party Platform” means a platform or software provided and hosted by a third party;
"UK DPA 2018” means the UK Data Protection Act 2018;
"User" means an individual who is authorized by the Customer to use the Swallow Services up to the amount of Seats purchased in accordance with the Plan;
“You” “Yours” means the Customer entering into the Swallow Customer Agreement, as applicable.
1.2. In this Swallow Customer Agreement:
a) words in the singular include the plural;
b) reference to a person includes a legal person (such as a limited company) as well as a natural person;
c) a reference to “party” will mean either Swallow or Customer and “parties” will mean both Swallow and Customer;
d) Clause headings are for convenience only and will not affect the construction of this Swallow Customer Agreement;
e) reference to "including" or any similar terms in this Swallow Customer Agreement will be treated as being by way of example and will not limit the general applicability of any preceding words; and
f) reference to any legislation will be to that legislation as amended, extended, or re-enacted from time to time and to any subordinate provision made under that legislation.
2.1. Subject to this Swallow Customer Agreement and full, timely payment of all applicable Fees, or in the case of a Free Trial, your agreement to this Swallow Customer Agreement, Swallow agrees to provide the Swallow Services to You in accordance with the Plan agreed during the sign-up process or as may be agreed to from time to time within the Swallow Applications.
2.2. You acknowledge and agree that Swallow has the exclusive right to decide how to develop the Swallow Services or any part thereof, including the Swallow Applications and the Swallow API. Swallow may, in its sole discretion, remove or add features to the Swallow Services at any time without any claims to compensation or any other remedies by You.
3.1. This Swallow Customer Agreement will apply to Your use and Your Users’ use of the Swallow Services from the Effective Date.
3.2. Unless terminated earlier in accordance with Clause 15, this Swallow Customer Agreement will continue for the Initial Term and thereafter in perpetuity for successive Renewal Terms which will automatically apply unless and until either party requests termination not less than fourteen (14) days prior to the end of the Initial Term or then-current Renewal Term as the case may be.
4.1. Subject to this Swallow Customer Agreement and in consideration of the full payment, timely of all applicable Fees by You to Swallow, or in the case of a Free Trial, your agreement to this Swallow Customer Agreement, Swallow hereby grants to You, subject to i) the amount of Seats You have purchased under the then-current Plan as applicable; ii) the terms and any limitations (including but not limited to data storage, API call and data enrichment limits) of such Plan or as may be otherwise set by Swallow from time to time in its sole discretion; iii) the terms in this Swallow Customer Agreement and any Documentation, a limited, non-transferable, non-exclusive, non-sublicensable and revocable license during the Term to access and use the Swallow Services and to permit Your Users to access the Swallow Services, in view only non-downloadable format, solely for internal business use and subject always to reasonable use as determined by Swallow in its sole discretion.
4.2. You grant to Swallow a non-exclusive, worldwide, fully paid up, royalty free, irrevocable, sub-licensable license to, for the duration of the Term, use your Customer Data in any form or manner solely to the extent that this is necessary to provide You with the Swallow Services in accordance with the terms of this Swallow Customer Agreement.
4.3. You may not sub-license the right to access and/or use the Swallow Services to any third party. All rights in and to the Swallow Services, (including Swallow Content but excluding Customer Data) and Swallow Applications are reserved to Swallow.
4.4. You shall not, and shall procure that Your Users shall not (whether directly or through a third party):
a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Swallow Services or the Swallow Applications unless such restriction is not permitted by law;
b) provide or resell the Swallow Services;
c) modify, translate, or create derivative works based on the Swallow Services or any Swallow Applications;
d) attempt to exceed or circumvent any express or implied limitations on use of the Swallow Services, including, but not limited to, in relation to the number of calls to the Swallow API or related use thereof, storage and data enrichment functionality, as set by Swallow from time to time and in its sole discretion and where such limitations may depend on the type of Plan purchased or taken;
e) use the Swallow Services or Swallow Applications for timesharing or service bureau purposes or otherwise for the benefit of a third party;
f) remove any proprietary notices or labels from the Documentation, Swallow Services and/or Swallow Applications;
g) permit or facilitate any third party to access or use the Swallow Services or use the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
h) attempt to circumvent security, license control or other protection mechanisms, or tamper with, probe, scan, test the vulnerability of or hack into or otherwise disrupt the Swallow Services or Swallow Applications or any associated website, computer system, server, router, or any other internet-connected device, including, without limitation, by overloading it or them with data or calls to the API;
i) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Swallow Services (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorized use contained in this Swallow Customer Agreement;
j) upload, store, post, email, transmit or otherwise make available by any means any Malicious Software;
k) upload, store, post, email, transmit or otherwise make available by any means any content (including but not limited to any Customer Data) that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited;
l) impersonate any person or entity or otherwise misrepresent Your relationship with any person or entity;
m) engage in any fraudulent activity or further any fraudulent purpose;
n) provide false identity information;
o) attempt to gain or enable unauthorized access to the Swallow Services, Swallow Applications or its related systems or networks, and will not permit any third party to do any of the foregoing.
4.5. For the avoidance of doubt, Swallow reserves the right to monitor use of Swallow Services and, from time to time and in its sole discretion, implement additional restrictions and limitations on Your and Your Users’ use of Swallow Services without notice, including, but not limited to, regarding data storage limits, API calls, data enrichment functionalities or generally Your access to some or all of the Swallow Services.
4.6. You will ensure You have, and Users have, suitable internet service and hardware, telecommunications services, and software necessary to access the Swallow Applications and receive the Swallow Services over the internet as recommended by Swallow from time to time. Swallow accepts no liability or responsibility for the performance of any such hardware, telecommunications services, software, or internet service, or for the performance or availability of the internet itself.
4.7. You will permit Swallow and its nominated advisers to inspect and have access to any premises and hardware at or on which the Swallow Services is being accessed or used from and have access to any records kept in connection with the Swallow Customer Agreement, for the purpose of ensuring that Your and Your Users are in compliance with this Swallow Customer Agreement. You warrant that You will provide all reasonable co-operation, access, and assistance in relation to each audit and that You will procure the same from Users. Swallow will use its reasonable efforts to provide reasonable notice to You of any audit under this Clause 4.7.
4.8. You shall at all times comply with the Swallow support documentation and Swallow API documentation. All use of the Swallow brands, names, logos and assets must be pre-approved by Swallow in writing; please contact Swallow at contact@llow.io for this consent prior to any such use.
5.1. You will designate one (1) or more natural persons as the responsible party for communication with Swallow, cancelling or modifying the Plan, and adding or removing Users (the "Administrator"). You warrant and represent that the Administrator will have the authority to bind the Customer, except that another duly authorized representative of the Customer may change the Administrator by giving notice to Swallow via email or, if applicable, assigning the role to a duly authorized User within the Swallow Applications.
5.2. The Administrator may add or remove Users by inviting colleagues during the online sign-up process which involves providing Swallow their email address(es) or by adding colleagues within the Settings section of your account, again by providing Swallow their email address(es). By adding Users, you instruct us to contact such User(s) to notify them of the Swallow Services in order for them to gain access to some or all of such Swallow Services. You warrant to us that prior to adding a User, you have informed such User and gained consent from them for Swallow to contact them in this regard, and further warrant that you have provided them Swallow’s Privacy Policy upon which their consent is based. You undertake to only provide colleagues work email addresses and never any personal email addresses or contact information about a person whom you have not complied with the preceding obligations in respect of.
5.3. You procure that the Administrator will only add or remove Users in accordance with the Plan, up to the number of Seats paid for and at all times in accordance with this Swallow Customer Agreement and Your lawful instructions. For the avoidance of doubt, if Your Plan only covers one Seat, You will be the Administrator and will not be able to add or remove any Users without upgrading to a paid-for Plan.
5.4. You will make all Users read this Swallow Customer Agreement and make them aware particularly of the restrictions set out herein and procure that they shall accept the Acceptable Use Policy before using any of the Swallow Services.
5.5. You will, and will procure that Users will, immediately notify Swallow if You or a User becomes aware of any breach of this Swallow Customer Agreement.
5.6. You will be responsible for all access to and use of the Swallow Services by Your Users. You will be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames, API keys and passwords, assigned to, or created by You or any of Your Users in order to access or use the Swallow Services. You further acknowledge and agree that You will remain responsible for all activities that occur under any User account and any activity relating to the Swallow API accessed through Your API key.
5.7. You will keep complete and accurate records of the Users and produce such records to Swallow on request from time to time.
5.8. You will promptly notify Swallow upon becoming aware of any unauthorized access to or use of any the Swallow Services and provide all reasonable assistance to Swallow to prevent such unauthorized access or use.
5.9. Swallow may use software tools to collect information and data, including Personal Data, relating to the way Users use the Swallow Services and Swallow Applications, including data concerning clickstreams, times of sessions and volumes of data accessed, and will retain and process information and data, including Personal Data, for the purposes of detecting and preventing breaches of Swallow’s network security, applicable laws, this Swallow Customer Agreement and the Privacy Policy, and to enhance its software.
6.1. All Fees are due and payable by the Customer in advance, either annually or monthly, in accordance with the chosen Plan.
6.2. We may not require payment for as long as You are in a Free Trial. You do not have the right to a Free Trial and Swallow reserves the right to start and end any Free Trial at its sole discretion. There can only be one Free Trial per Customer.
6.3. Swallow offers the Swallow Services on different Plans that grant access to different features and vary in the amount of Fees payable for that Plan. Some features are reserved for subscribers of a specific Plan. You may choose a Plan when first signing up to Swallow Services and subsequently, may be able to change the Plan in accordance with following conditions:
a) changes to a higher-priced Plan may be made at any time within the Initial Term or thereafter and changes will take effect immediately; or
b) changes to a lower-priced Plan may only be made to take effect at any time after the Initial Term and no sooner than the commencement of the first Renewal Term.
6.4. You may request a change to Your Plan subject to the conditions set out in Clause 6.3 above, either through the account management page within the Swallow Applications or by contacting Swallow customer support team at contact@llow.io.
6.5. Users will have access to Swallow Services in accordance with the Plan chosen and paid for by the Customer.
6.6. Payment is due immediately and You are obliged to settle all invoices immediately. If You submit payment details for a credit card, debit card, direct debit or other a similar payment method (collectively, “Credit Card”) to us, You hereby authorize Swallow to automatically charge the Credit Card, including any applicable taxes, to settle any outstanding invoices, including Fees for any Renewal Terms. You acknowledge that certain Credit Cards may charge foreign transaction fees or other charges which will be Your responsibility to pay.
6.7. If the number of Users authorized by You to use Swallow Services exceeds the number of Seats purchased by You or otherwise requires the payment of additional Fees, You agree to be billed for such usage and be automatically charged for the additional Fees.
6.8. Subject to Clause 14.4, all Fees are non-refundable. For example, if You subscribed to Swallow Services with ten (10) Seats for an Initial Term of one (1) year and two months into the Initial Term, You wish to reduce the number of Seats to six (6), then Swallow will not be obligated to refund any Fees paid for the four (4) Seats no longer required. The number of Seats subscribed to will only reduce to six (6) at the beginning of the Renewal Term, subject to any other changes made before such time.
6.9. Swallow reserves the right to change the Fees on thirty (30) days prior notice to You (which may be sent by email). Any change in the Fees will become effective at the end of the Initial Term or then-current Renewal Term.
6.10. If any Fees are not successfully settled for any reason, You will remain responsible for any amounts not remitted to Swallow. Should automatic billing fail to occur for any reason, Swallow may attempt to charge the Credit Card one (1) or more times. Should payment continue to fail, Swallow may without liability to You:
a) suspend the Swallow Services or any part thereof; and/or
b) charge interest on the overdue amount at the rate of eight (8)% per annum above the base rate of the Bank of England (which interest will accrue daily until the date of actual payment and will be compounded at the end of each calendar month).
6.11. All Fees are exclusive of VAT or any relevant local sales taxes, for which You will be responsible in accordance with applicable law.
7.1. Swallow Services are provided “as is” and “as available”. We do not provide warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement, or performance.
7.2. Swallow does not warrant that the Swallow Services, including the Swallow API, and/or Swallow Applications will be uninterrupted, secure, available at any particular time or error free. We will have no responsibility for any harm to Your or any User’s computer system, loss or corruption of data, or other harm that results from Your or any User’s access to or use of Swallow Services. No information or advice obtained by You from Swallow, including vendor due diligence forms, messages, and information, will create any warranty not expressly stated in this Swallow Customer Agreement.
7.3. If because of a technical, legal, or operational reason Swallow can no longer fulfil a provision in this Swallow Customer Agreement then Swallow may, at its sole discretion, declare said provision to be no longer binding. The sole and exclusively remedy for You in such a scenario will be that You may terminate this contract with thirty (30) days’ notice, though no damages are due, and no refund will be given.
8.1. Nothing in this Swallow Customer Agreement will cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other, except as set out in Clause 8.5.
8.2. Swallow and/or its licensors will, as between the parties, remain the owner of all Intellectual Property Rights in Swallow's brands, trademarks and logos, the Swallow Services (including Swallow Content but excluding the Customer Data) and the Swallow Applications. Except as expressly permitted between the parties in writing or as otherwise set out in this Swallow Customer Agreement, You will not and will procure that Users will not use any of Swallow's Intellectual Property Rights without Swallow's prior written consent.
8.3. If You become aware or suspect any improper or wrongful use of any of Swallow’s Intellectual Property Rights, You will promptly notify Swallow in writing of all circumstances relating to such improper or wrongful use. You will assist Swallow in taking all steps to defend Swallow's Intellectual Property Rights, but You will not institute legal proceedings of Your own accord.
8.4. You will, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data. You warrant that You own the Customer Data and/or are otherwise entitled to grant the foregoing license and that the provision of the Customer Data to Swallow and exercise of any rights by Swallow in connection with the Customer Data will not breach any third party rights including any Intellectual Property Rights. If this Swallow Customer Agreement is terminated, the foregoing license will automatically terminate.
8.5. If You or any Users provide Swallow with any feedback, comments, suggestions, enhancements, recommendations, or other input concerning the Swallow Services or any part thereof (collectively, “Feedback”), You hereby assign and/or procures Users to assign to Swallow all right, title, and interest in and to the Feedback, and agree and understand that Swallow is free to use the Feedback without payment, attribution, or restriction.
You (on Your own account and on behalf of any User) represent, warrant and undertake to Swallow that:
a) You have all right, power and authority to grant any rights under this Swallow Customer Agreement;
b) the development, supply and use of the Customer Data, and the grant of any rights by You under this Swallow Customer Agreement, will be in accordance with all applicable laws and will not infringe the rights of any third party;
c) You will comply with all applicable law, and have obtained and undertake that You will maintain all consents, licenses and permissions required by You to grant the rights and perform any obligations under the Swallow Customer Agreement;
d) You will not insert or include, or permit or cause the insertion or inclusion in the Swallow Services, any Malicious Software, or anything else that might be reasonably prejudicial to Swallow’s reputation or its business;
e) You will use up to date, industry accepted anti-virus software to check for and prevent any Malicious Software being introduced into the Swallow Services.
You will indemnify Swallow against all loss or damage that Swallow incurs or suffers however arising as a result of or in connection with Your or Your Users use of the Swallow Services, the Customer Data, and Your and/or Your Users’ violation of this Swallow Customer Agreement.
11.1. Nothing in this Swallow Customer Agreement limits or excludes either party's liability:
a) for death or personal injury caused by its negligence;
b) for fraudulent misrepresentation or for any other fraudulent act or omission;
c) to pay sums properly due and owing to the other in the normal course of performance of this Swallow Customer Agreement; and/or
d) for any other liability which may not lawfully be excluded or limited.
11.2. Subject to Clause 11.1, in no event will Swallow, its directors, employees, partners, agents, suppliers, or affiliates be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any:
a) loss of profit, loss of sales, turnover, revenue or business;
b) loss of customers, contracts or opportunity;
c) loss of or damage to reputation or goodwill;
d) loss of anticipated savings;
e) loss of any software or data;
f) loss of use of hardware, software or data;
g) loss or waste of management or other staff time;
h) indirect, incidental, consequential, special, or punitive damages (including service interruptions, computer damage or system failure)
arising out of or relating to Your or Your Users’ access to or use of or inability to access or use of the Swallow Services or any part thereof; any conduct or content of any third party on the Swallow Services and/or Swallow Applications; any content obtained from the Swallow Services; any conduct or content of any Users; and, any unauthorized access, use or alteration of Your or Your Users’ transmissions or content, including Customer Data, whether based on warranty, contract, tort (including negligence) or any other legal theory and whether or not advised of the possibility of such losses.
11.3. Subject to Clauses 11.1 and 11.2, Swallow's total aggregate liability arising out of or relating to this Swallow Customer Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) will be limited to the total amount of Fees actually paid by You in the twelve (12) months preceding the event giving rise to the claim.
12.1. Subject to Clause 12.2, each party will:
a) keep confidential all Confidential Information of the other party which it receives in connection with the provision or receipt of the Swallow Services;
b) apply to such Confidential Information no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting the same;
c) only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Swallow Customer Agreement;
d) not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors, and sub-contractors on a 'need to know' basis as strictly required in accordance with this Swallow Customer Agreement and subject to each such person being bound by an obligation of confidentiality no less favorable than this Clause 12; and
e) promptly, upon request and, in any event, upon termination of the Swallow Customer Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying, or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
12.2. Confidential Information will not include any information that the recipient can establish:
a) was publicly known and made generally available in the public domain prior to the time of disclosure;
b) becomes publicly known and made generally available after disclosure through no breach of this Swallow Customer Agreement or any other contractual obligation;
c) is already known by or legally in the possession of the recipient at the time of disclosure; and/or
d) is lawfully disclosed to the recipient, without any obligations of confidentiality owed by a third party.
12.3. Either party may disclose the other's Confidential Information to the extent required by law or by any court, tribunal, regulator, or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
12.4. You acknowledge and agree that the Swallow Services (including Swallow Content but excluding Customer Data) and Swallow Applications and the terms of this Swallow Customer Agreement, including, in particular, the pricing, constitute Confidential Information of Swallow. Swallow acknowledges and agrees that the Customer Data constitutes Your Confidential Information.
12.5. Notwithstanding anything to the contrary, Swallow will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Swallow Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Swallow will be free to:
a) use such information and data to improve and enhance the Swallow Services and for other development, diagnostic and corrective purposes in connection with the Swallow Services and other Swallow offerings; and
b) disclose such data solely in aggregate or other de-identified form.
13.1. In this Clause 13, "process", "data controller", “service provider” and "data processor" will have the same meanings as set out in the Data Protection Legislation.
13.2. The parties agree that under the applicable Data Protection Legislation, Swallow is the data processor of Customer Data that constitutes Personal Data, and that You are the data controller. For the avoidance of doubt, where the CCPA is applicable, Swallow acts as a service provider for Your business.
13.3. As the data controller, You warrant and represent that You have the right to share the Personal Data contained in the Customer Data to the Swallow Services and to allow its use in the provision and receipt of the Swallow Services to You and Your Users.
13.4. To the extent that Swallow processes Personal Data in the course of providing the Swallow Services, Swallow will:
a) process the Personal Data only for the purpose of providing the Swallow Services or otherwise on Your written instructions, which may be specific instructions or instructions of general nature, and including in order to comply with its obligations under this Swallow Customer Agreement;
b) only process Personal Data for the purpose of providing the Swallow Services and not for its own purposes, and for the duration of the Initial Term and any Renewal Term, as applicable;
c) implement and maintain appropriate technical and organizational measures to protect Personal Data against unauthorized or unlawful processing and accidental loss, destruction, damage, theft or disclosure, having regard to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of the Personal Data and having regard to the nature of the Personal Data which is to be protected;
d) at Your request and choice, either deliver to You or delete the Personal Data from its systems on termination of the Swallow Services;
e) take reasonable steps to ensure the reliability of personnel who have access to Personal Data pursuant to this Swallow Customer Agreement and ensure that such personnel processing the Personal Data for Swallow are subject to a duty of confidence in relation to the Personal Data, and understand their obligations when handling Personal Data in accordance with this Clause 13;
f) assist You to meet Your obligations to respond to requests by data subjects exercising their rights, in meeting Your legal obligations in relation to the security of processing of Personal Data, and in undertaking data protection impact assessments;
g) notify You without undue delay of any Personal Data breaches and provide information when known as to the source and nature of the data breach, the type of data that was subject to the breach, and the identity of the affected data subjects;
h) submit to audits and inspections by a certified third party chosen by Swallow and make the summary report available to ensure that Swallow is complying with its obligations under this Clause 13; and
i) notify You if, in Swallow’s reasonable opinion, Your instructions in respect of any processing of Personal Data by Swallow are unlawful.
13.5. The assistance provided by Swallow to You as set out in Clause 13.4 above will be provided as a chargeable service in accordance with Clause 6.
13.6. You agree that in order to provide the Swallow Services, Swallow may engage sub-processors from time to time to process Personal Data. At Your request, Swallow will provide details of such sub-processors and any changes to the identity of a sub-processor. Swallow will engage sub-processors under a written agreement with adequate protections for data subjects that are at least equivalent to those set out under this Clause 13. Swallow may engage sub-processors that are based outside of the United Kingdom and the European Union which You hereby consent to and procure that Users consent to. In these cases, Swallow will only do so if the sub-processor is located in a country that has been identified as providing adequate protection for Personal Data or to a third party where there is an approved transfer mechanism in place to protect the Personal Data – i.e., by entering into the UK International Data Transfer Agreement (“IDTA”) and/or IDTA Addendum (as applicable) or the European Commission's Standard Contract Clauses. Wherever Swallow uses sub-processors in accordance with this Clause 13.6, it will remain liable to You for their compliance with the applicable Data Protection Legislation.
13.7. The parties agree not to make any statement or publish any filing, communication, notice, press release, or report concerning any breaches of Data Protection Legislation affecting the Swallow Services.
14.1. Without affecting any other right or remedy available to it, Swallow or You may terminate this Swallow Customer Agreement with immediate effect by giving written notice to the other party if:
a) the other party fails to pay any amount due under this Swallow Customer Agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;
b) the other party commits a material breach of this Swallow Customer Agreement which is irremediable or if remediable is not remedied within a period of fourteen (14) days after being notified in writing of the breach; or
c) the other party becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within twenty-eight (28) days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
14.2. On termination, You will pay in full for the Swallow Services up to and including the last day on which the Swallow Services are provided. Upon any termination, Swallow will make all Customer Data available to You for electronic retrieval for a period of thirty (30) days, but thereafter Swallow may, but is not obligated to, delete stored Customer Data.
14.3. All sections of this Swallow Customer Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
14.4. Swallow may terminate this Swallow Customer Agreement at any time and without notice. In cases of immediate termination without cause by Swallow, Swallow will refund You the paid but unused portion of Fees for the remainder of the Initial Term or Renewal Term as the case may be.
14.5. Without prejudice to Clauses 14.1, 14.2 or 14.4, Swallow may, in addition, and without liability, terminate this Swallow Customer Agreement, or alternatively, may suspend access to and use of the Swallow Services of any part thereof, by giving notice to You if any provision of this Swallow Customer Agreement is breached.
Neither party will be liable to the other for any failure or delay in performing its obligations under this Swallow Customer Agreement except for Your payment obligations, which arises because of any circumstances which it cannot reasonably be expected to control (which will include Act of God, pandemics, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving personnel of Swallow or a third party), difficulties in obtaining raw materials, labor, fuel, parts or machinery or breakdown in machinery, or interruption or failure of the internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing, but will not include shortage or lack of available funds on Your part), provided that it:
a) notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely effects;
b) uses reasonable efforts to mitigate the effects of the circumstances so as to minimize or avoid any adverse impact on the other; and
c) uses reasonable efforts to resume performance as soon as reasonably practicable.
You agree that Swallow may use Your name or logo to list You as an Swallow customer on its website and in other marketing materials.
17.1. Unless the parties expressly agree otherwise in writing, if a party:
a) fails to exercise or delays exercising or only exercises partially any right or remedy provided under this Swallow Customer Agreement or by law; or
b) agrees not to exercise or to delay exercising any right or remedy provided under this Swallow Customer Agreement or by law;
then that party will not be deemed to have waived and will not be precluded or restricted from further exercising that or any other right or remedy.
17.2. No agency, partnership, joint venture, or employment is created as a result of this Swallow Customer Agreement and neither Customer nor Swallow will have any authority of any kind to bind the other in any respect whatsoever.
17.3. If any provision of this Swallow Customer Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Swallow Customer Agreement will otherwise remain in full force and effect and enforceable.
17.4. You may not assign, transfer or sub-license Your rights under this Swallow Customer Agreement except with Swallow’s prior written consent. Swallow may transfer and assign any of its rights and obligations under this Swallow Customer Agreement without Your consent.
17.5. Except as expressly set out herein, a person who is not a party to this Swallow Customer Agreement will have no rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
17.6. Each party will at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
17.7. This Swallow Customer Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to its subject matter, including but not limited to vendor due diligence information that Swallow may have provided, with the sole exception of an executed Swallow Master Services Agreement. All waivers and modifications of this Swallow Customer Agreement must be in a writing signed by both parties, except as otherwise provided herein. Provided always that nothing in this Clause 17.7 will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms will apply or form part of this Swallow Customer Agreement and each party acknowledges that it has not been influenced to agree to this Swallow Customer Agreement by, and will have no rights or remedies (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded herein.
17.8. This Swallow Customer Agreement is governed by the laws of England and Wales. All parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Swallow Customer Agreement or its subject matter, but Swallow is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights. Notwithstanding the foregoing, if You are located in the United States then the Swallow Customer Agreement is governed by the laws of the State of Delaware and You are expressly agreeing to the following mandatory arbitration of disputes:
a) This Swallow Customer Agreement and any separate agreements whereby We provide You Swallow Services, and any dispute between You and Us, shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless You and We agree otherwise, in the event that this Clause 17.8 is found not to apply to You or to a particular claim or dispute, either as a result of Your decision to opt-out of the Arbitration Procedures or as a result of a decision by the arbitrator or a court order, You agree that any claim or dispute that has arisen or may arise between You and Us must be resolved exclusively by a state or federal court located in the State of Delaware, except that You or We are permitted to: (i) bring small claims actions in state court in the county in which You reside if such court has a small claims procedure and if such court is located in the United States of America; (ii) bring claims for injunctive relief in any court having jurisdiction over the Parties; or (iii) seek enforcement of a judgment in any court having jurisdiction over the Parties. To the extent permitted by law, You and We agree to waive trial by jury in any court proceeding;
b) Except if You opt-out or for disputes relating to Your or Our Intellectual Property Rights, You agree that all disputes between You and Us (whether or not such dispute involves a third party) arising out of or relating to this Swallow Customer Agreement, the Swallow Services, and/or our Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in the State of Delaware, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and You and We hereby expressly waive trial by jury. You and We shall appoint as sole arbitrator a person mutually agreed by You and Us or, if You and We cannot agree within thirty (30) days after either Party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either Party. The Parties shall bear equally the cost of the arbitration (except that the prevailing Party shall be entitled to an award of reasonable attorneys' fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both Parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with this Swallow Customer Agreement;
c) Any claims brought by You or Us must be brought in such Party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You agree and acknowledge that neither You nor We will participate in a class action or class-wide arbitration for any claims covered by this Swallow Customer Agreement. You hereby waive any and all rights to bring any claims related to these terms and/or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You understand and agree that You may bring claims only on Your own behalf;
d) You may opt out of this Agreement to Arbitrate. If You do so, neither You nor We can require the other to participate in an arbitration proceeding. To opt out, You must notify us in writing within thirty (30) days after the date that You first became subject to this arbitration provision. The opt-out notice must state that You do not agree to the Agreement to Arbitrate and must include Your name, address, phone number, Your account information, if applicable, to which the opt-out applies and a clear statement that You want to opt out of this Agreement to Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way You can opt out of the Agreement to Arbitrate. You must use this address to opt out: Llow Group Ltd, Arquen House, 4-6 Spicer Street, St Albans, AL3 4PQ, United Kingdom, and email contact@llow.io
e) Notwithstanding any provision in this Swallow Customer Agreement to the contrary, You and We agree that if We make any change to the Arbitration Procedures (other than a change to any notice address or Website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Us prior to the effective date of the change. Moreover, if We seek to terminate the Arbitration Procedures from this Swallow Customer Agreement, such termination shall not be effective until thirty (30) days after the version of the Swallow Customer Agreement not containing the Arbitration Procedures is posted to our Website and shall not be effective as to any claim that was filed in a legal proceeding against Us prior to the effective date of removal; and
f) This Agreement to Arbitrate will survive the termination of Your relationship with Us.
