Swish.com User Agreement

TERMS AND CONDITIONS OF USE GOVERNING THIS WEB SITE

Swish.com, LLC. ("Swish") maintains the www.swish.com web site, including the mobile versions of the Swish site and affiliated sites (collectively, the "Web Site") as a resource for individuals retaining a list of items they want, sharing those items with others, tracking prices, and tracking other information about those lists of items.

By using the Web Site, you agree to comply with and be bound by the following terms and conditions (this "Agreement"), which we may change at any time by posting notice on the Web Site. PLEASE READ THIS AGREEMENT CAREFULLY, AND PLEASE CHECK THESE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES. In addition, when using any particular service of the Web Site, you may be subject to additional guidelines or terms and conditions applicable to such service that may be posted from time to time, which are hereby incorporated into this Agreement.

1. Conditions on Using the Web Site.

All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content of the Web Site, including any Submissions (as defined below), and any of the foregoing sent to you by e-mail or other means (collectively, the "Site Content") are proprietary to us or to third parties.

Swish authorizes you to view, download, and print the Site Content subject to the following conditions: (a) you may only download and print the Site Content in limited quantities for your personal, non-commercial use; (b) you may not modify the Site Content; (c) any displays or print outs of the Site Content must be marked "© Swish.com, LLC., 2010. All rights reserved."; and (d) you may not remove any copyright, trademark or other proprietary notices that have been placed in the Site Content. Except as expressly permitted above, copying, modifying reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the Site Content, or any portion of the Site Content, is strictly prohibited without the prior written permission of Swish. In addition, you may not link to any part of the Web Site or any Site Content or frame or otherwise display in any manner the Site Content at any other web site or elsewhere.

All software used on the Web Site is proprietary to us or to third parties, and except as may be required to exercise the foregoing license grant, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other reduction of such software to human-readable form is prohibited.

The marks Swish™ and swish.com™ are proprietary to us, and they may not be used in connection with any service or products other than those provided by Swish, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Swish. Any use of those marks, or any others displayed on the Web Site, will inure solely to the benefit of their respective owners.

You agree, and represent and warrant, that your use or other exploitation of the Web Site and the Site Content, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, you agree that you will comply with all applicable laws, regulations and ordinances relating to the Web Site, the Site Content or your use of them, and you will be solely responsible for your own individual violations of any of them.

2. Submissions of ideas, suggestions, or other information to Swish Belong to Swish.

Swish is pleased to hear from you and welcomes your comments regarding the Web Site and Site Content. In the event that you submit ideas, suggestions, materials or other information to Swish, other than Shared Space Content (as defined below), whether at the request of Swish or not (all of the foregoing being "Submissions"), the Submissions will be deemed, and will remain, the sole property of Swish. None of the Submissions will be subject to any obligation of confidence on the part of Swish, and Swish and Swish Affiliates (as defined below) will not be liable for any use or disclosure of any Submissions. Without limiting the foregoing, Swish will exclusively own all now known or hereafter existing rights to the Submissions of every kind, in perpetuity, and will be entitled to unrestricted use and other exploitation of the Submissions for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Submissions. Each of the them irrevocably and unconditionally waives and covenants not to assert any of such rights against Swish or its affiliates, successors, assigns, licensees, partners, and customers (collectively, "Swish Affiliates"), as well as any users of the Web Site.

3. The Shared Spaces Are an Unrestricted Forum and Shared Space Content Is Not Proprietary.

A number of locations on the Site offer opportunities for social networking (defined here as "Shared Spaces." The Shared Spaces provide an unrestricted forum for the exchange of ideas and information by participants. Swish does not edit or control the information or materials posted to or distributed through the Shared Spaces (the "Shared Space Content"), will not be in any way responsible or liable for Shared Space Content, and claims no proprietary rights of any kind arising from the posting or distribution of information or material in the Shared Spaces.

BY POSTING OR DISTRIBUTING INFORMATION OR MATERIAL THROUGH ANY OF THE SHARED SPACES, YOU EXPRESSLY ABANDON ANY RIGHTS YOU MAY HAVE IN SUCH SHARED SPACE CONTENT, AND SUCH INFORMATION OR MATERIAL MAY BE FREELY USED, COPIED, DISTRIBUTED AND OTHERWISE EXPLOITED, IN ANY MEDIUM, BY ANY MEANS, BY OTHERS WITHOUT YOUR PERMISSION.

4. You Make Contact With Other Web Site Users At Your Own Risk

The Web Site provides a mechanism for you to communicate and interact with other people. You must take all reasonable precautions in your dealings with other people you meet through the Web Site. You acknowledge that Swish does not vet the users of the Web Site in any way, nor does Swish take any precautions or measures to protect you from harm in your dealings and interactions with other Web Site users.

YOU COMMUNICATE AND INTERACT WITH OTHER PEOPLE THROUGH THE WEB SITE AT YOUR OWN RISK. IT IS YOUR RESPONSIBILITY TO TAKE ALL REASONABLE PRECAUTIONS, INCLUDING WITHOUT LIMITATION ANY PRECAUTIONS YOU WOULD TAKE IF YOU MET A PERSON ANONYMOUSLY ON THE STREET, TO AVOID HARM. YOU HEREBY RELEASE AND INDEMNIFY Swish FROM AND AGAINST ANY CLAIMS, ACTIONS, PROCEEDINGS, LOSSES AND LIABILITIES ARISING FROM ANY INTERACTIONS, MEETINGS OR COMMUNICATIONS YOU UNDERTAKE IN CONNECTION WITH USE OF THE WEB SITE.

5. Rules of Conduct for Participants in the Shared Spaces and Users Making Submissions.

The following restrictions on Shared Space participants and users of the Web Site making Submissions are intended to make the Web Site and Site Content suitable and appropriate for all users of the Web Site.

Shared Space participants and users of the Web Site making Submissions will not:

• Use a Shared Space or make a Submission for any purpose in violation of local, state, national or international laws;
• Impersonate any person or entity, or forge or manipulate headers to disguise the origin of any Shared Space Content or Submission;
• Harvest or otherwise collect information about others, including email addresses, without their consent;
• Post the material or Submission more than once or "spam"; or
• Engage in any other conduct that restricts or inhibits any other person from using or enjoying the Shared Space, Shared Space Content, Web Site or Site Content, or which, in Swish's sole judgment, exposes Swish or any Swish Affiliate to any liability or detriment of any type.
Shared Space participants and users of the Web Site making Submissions will not submit, upload to, distribute through or otherwise post any material that:
• Is libelous, defamatory, threatening, abusive, scandalous, obscene or unlawful or that encourages a criminal offense;
• Contains any advertising, promotional, solicitation or other commercial material;
• Contains material from other copyrighted works without the written consent of the owner of such copyrighted material;
• Infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
• Contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others; or
• Contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
Swish reserves the right (but is not obligated) to do any or all of the following:
• Record Shared Space Content;
• Investigate an allegation that Shared Space Content or a Submission does not conform to the terms and conditions of this Agreement;
• Remove Shared Space Content that is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;
• Monitor, edit or disclose any Shared Space Content; or
• Edit or delete any Shared Space Content, regardless of whether such content violates any terms and conditions of this Agreement.

Swish and Swish Affiliates have no liability or responsibility to users of the Web Site or any other person or entity for performance or nonperformance of the aforementioned activities.

6. Consent to Feeds and Receipt of Emails

If you register to receive email, SMS, or other communications via the Web Site, you hereby consent to the receipt of such communications. It is your responsibility to manage the communications you receive with respect to the Web Site.

7. Links to Third Party Web Site Are Not Endorsements.

The Web Site contains links to third-party web sites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Swish. Links to merchants or advertisers are owned and operated by independent retailers or service providers, and therefore, we are unable to ensure that you will be satisfied with their products, services or business practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.

8. Warranty Disclaimers and Limitations of Liability.

Swish and Swish Affiliates make no representations or warranties of any kind regarding the Web Site and the Site Content. The Web Site and Site Content are provided in "AS IS" condition, and Swish and Swish Affiliates EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE WEB SITE AND THE SITE CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE WEB SITE OR THE SITE CONTENT, AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE WEB SITE OR THE SITE CONTENT. No advice or information, whether oral or written, obtained by you from Swish, any of Swish Affiliates or through the Web Site or Site Content will create any warranty not expressly stated herein.

YOU USE THE WEB SITE AND THE SITE CONTENT AT YOUR OWN RISK, AND NEITHER Swish NOR Swish AFFILIATES WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO ANY OF THEIR OPERATION, USE OR OTHER EXPLOITATION. You waive and covenant not to assert any claims or allegations of any nature arising from or relating to the operation, use or other exploitation of the Web Site or the Site Content, including any allegation or claim that Swish or Swish Affiliates has or should indemnify, defend, or hold you harmless from any claim or allegation arising from the operation, use or other exploitation of the Web Site or the Site Content.

UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM Swish OR Swish AFFILIATES ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE WEB SITE OR SITE CONTENT, EVEN IF Swish OR Swish AFFILIATES HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

9. Your Indemnity of Swish and Swish Affiliates; Termination of Use.

You agree to indemnify, hold harmless, and at their respective options, defend Swish and Swish Affiliates from all causes of action, claims and allegations (whether threatened or pending), costs, fees, charges, and expenses (including reasonable attorneys' and professionals' fees), judgments, damages, losses, and liabilities arising from or relating to the breach or alleged breach of your duties or obligations under this Agreement or your use of the Web Site or Site Content. For any indemnified matter, Swish and Swish Affiliates will have full control of the response thereto and the defense thereof, including any agreement relating to the settlement thereof, and you will cooperate fully with Swish and Swish Affiliates in such matter.

Swish may, at its option, suspend or terminate any User's access to any or all of the Web Site, including your password and account, and may remove or delete any Shared Space Content or Submissions you may have submitted.

10. Digital Millennium Copyright Act Compliance.

Swish complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Web Site you may contact our Designated Agent at the following address:

Compliance Office
Swish.com, LLC.
936 E 4th Street, Unit #3
Boston, MA 02127
Email: terms@swish.com

Any notice alleging that materials on this Web Site infringe intellectual property rights must include the following information:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;

(c) a description of the material that you claim is infringing and where it is located on the Web Site;

(d) your address, telephone number, and email address;

(e) a statement by you that you have a good faith belief that the use of the materials on the Site of which you are complaining is not authorized by the copyright owner, its agent, or the law;

(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

11. Link to the Privacy Policy.

Swish is concerned about user privacy and operates the Web Site under the PRIVACY POLICY published at www.swish.com/privacy.html. We urge you to read this policy now and, because the policy is updated from time to time, later at your convenience.

12. Applicable Law and Jurisdiction; Compliance.

The Web Site (excluding links) are controlled by Swish and operated by Swish from its offices in and around Boston, Massachusetts. Although Swish has made no effort to publish the Web Site elsewhere, because the Web Site is published on the World Wide Web it is accessible in all fifty states and other countries. As each of these places has laws that may differ from those of the District of Columbia and from each other, and as you and Swish both benefit from establishing a predictable legal environment in which to operate, use or otherwise exploit the Web Site, by using the Web Site you and Swish agree that all matters arising from or relating to the use and operation of the Web Site will be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles. You agree that all claims you may have arising from or relating to the operation, use or other exploitation of the Web Site will be heard and resolved in the courts located in the Commonwealth of Massachusetts. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any object to proceeding in such courts. If you choose to gain access to the Web Site from locations other than the Commonwealth of Massachusetts, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Web Site or Site Content in violation of U.S. export laws or regulations.

13. Miscellaneous Provisions.

No delay or omission by Swish in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Swish of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, "including" means "including but not limited to." If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Swish regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a "signing" for all purposes.