Terms & Conditions
TERMS OF USE
Swishboom, LLC, a Nebraska limited liability company, welcomes you to our website (the “Site”) and the mobile applications (the “App”) and any other services available from us, through the Site or other platforms (collectively with the Site, the “Services”). Your use of the Site and the Services are governed by these Terms of Use (these “Terms of Use”). Any time you browse the Site or use the Services in any way, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Site or the Services.
Your use of the Services is also subject to our Privacy Policy, which is located on the Site, as well as any policies and procedures we publish from time to time (collectively, the “Policies”). We reserve the right to modify these Terms at any time, with such changes becoming effective when we post the modified Terms to the Site. We also reserve the right to make any changes to the Site and Services in any manner and to deny or terminate your access to the Site and Services, even if you have an Account, in our sole discretion.
Each time you use the Site or the Services, the then-current version of the Terms will apply. If you use the Site or the Services after a modification of these Terms, you agree to be bound by the Terms as modified.
THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS WITH RESPECT TO THE SITE AND THE SERVICES, INCLUDING YOUR RELATIONSHIP WITH US, AND INCLUDE AN ARBITRATION PROVISION THAT MAY LIMIT YOUR ABILITY TO PURSUE CLAIMS AGAINST US IN COURT. PLEASE READ THEM CAREFULLY AND REVIEW THEM REGULARLY.
NOTICE OF AUTOMATIC RENEWAL. THIS AGREEMENT CONTAINS AN AUTORENEWAL PROVISION RELATING TO YOUR SUBSCRIPTION TO THE SERVICES.
ANY REFERENCE TO “VERIFIED SITTERS” OR A “VERIFIED NETWORK” ONLY REFERS TO THE FACT THAT SWISHBOOM COMPLETED THE VERIFICATION PROCESSES OUTLINED IN SECTION 2.07 WITH RESPECT TO A USER AT THE TIME OF SUCH USER’S ENROLLMENT AS A USER OF THE APP. NOTWITHSTANDING THE FOREGOING, SWISHBOOM CANNOT AND DOES NOT GUARANTEE THE ACCURACY OF ANY INFORMATION PROVIDED BY A USER. YOU ACKNOWLEDGE AND AGREE THAT SWISHBOOM DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER.
1. Access and Compliance
1.01 By accessing the App, you agree to be bound by these Terms of Use, all applicable laws and regulations. You represent to us that you are either a citizen or lawful residence of the United States, or any nation that is not currently under embargo by the United States. Citizens of the European Union are not eligible to use the App at this time.
1.02 You are eligible to use this App if you are the age of 18 or older or if you are between the ages of 13 and 18 (a “Teen User”) and you comply with Section 6 below. If you are the legal guardian or parent of a Teen User, you hereby represent, warrant, understand, agree to and accept these Terms of Use and any applicable additional terms in their entirety on behalf of yourself and your Teen User whether or not you use the App. You further understand and agree that you will ensure your Teen User’s compliance with these Terms of Use and that you are responsible for any noncompliance by your Teen User. You are ineligible to use this App or its Services if your Account has been suspended by Swishboom or you are under the age of 13. By your continued use of the App, you represent and warrant that you have the right, authority and capacity to use the App and to abide by these Terms of Use. Your use of the App is for your sole, personal use. You may not authorize others to use your Account and you may not assign or otherwise transfer your account to any other person or entity. You agree that Swishboom may modify these Terms of Use and such modifications shall be effective immediately upon posting. You agree to review these Terms of Use periodically to be aware of modifications. Continued access or use of the site shall be deemed conclusive evidence of your acceptance of the modified Terms of Use.
1.03 Certain of the Services or portions of the Site may require you to register for an account (“Account”). As part of the Account creation process, you may be asked to provide a username and password unique to the Account (“Login Information”). You are responsible for the confidentiality and use of your Login Information and agree not to transfer or disclose your Login Information to any third party other than an individual with express authority to act on your behalf. If you suspect any unauthorized use of your Account, you agree to notify us immediately. You are solely responsible for any activities occurring under your Account. You have no ownership right to your Account. You may not create an Account for or on behalf of an organization. Please contact Swishboom for enterprise account options.
1.04 You acknowledge and accept that we can terminate your Account for any reason. If we terminate your Account, you shall be responsible for no further payments to us. We do not make refunds of any payment received, but if your Account is terminated (except for breaches of Section 4 below), you shall retain the ability to use the Services through the end date of the current payment period.
1.05 If you provide information of references when using the App, you acknowledge and agree that we may contact such references and ask them to verify, among other things, the nature of their association with you. We may also require you to verify other information you provide, including your phone number and email address, and you authorize us to complete other verification procedures, including entering your name into sex offender registry databases.
2. Disclaimers
2.01 Swishboom may be used to facilitate the listing, marketing, acceptance, and completion of babysitting opportunities (“Appointments”). We make our Services available as an online marketplace for users who list available Appointments (“Care Seekers”) to connect with other users who want to book babysitting appointments (“Caregivers”) and make arrangements directly with each other. Swishboom IS NOT AN AGENCY. We do not employ or engage Caregivers. Our responsibilities are limited to providing an App where Care Seekers can connect with Caregivers and facilitating the availability of the Services.
2.02 YOU AGREE THAT SWISHBOOM HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY APPOINTMENT MADE THROUGH THE SERVICES OR TO ANY CARE PROVIDED BY CAREGIVERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS OF USE. SWISHBOOM CANNOT AND DOES NOT CONTROL THE INFORMATION OR CONTENT CONTAINED IN ANY LISTINGS (OTHER THAN THE ARRANGEMENT AND DISPLAY OF SUCH CONTENT) AND THE LEGALITY, SAFETY OR SUITABILITY OF ANY APPOINTMENTS. SWISHBOOM IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND APPOINTMENTS. ACCORDINGLY, ANY APPOINTMENTS WILL BE MADE OR ACCEPTED AT A USER’S OWN RISK, AND CARE SEEKERS MUST SATISFY THEMSELVES WITH ANY CAREGIVER’S CREDENTIALS.
2.03 CAREGIVERS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS OR FRANCHISEES OF SWISHBOOM. SWISHBOOM DOES NOT PERFORM ANY OBLIGATIONS IN CONNECTION WITH THE CARE PROVIDED FOR CARE SEEKERS AND DOES NOT EMPLOY CAREGIVERS TO PERFORM SUCH OBLIGATIONS. USERS HEREBY ACKNOWLEDGE THAT SWISHBOOM DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A CAREGIVER’S APPOINTMENTS BUT MAY MONITOR BOOKINGS MADE THROUGH THE SERVICES.
2.04 Swishboom strongly recommends that, if any User is introduced to an individual who may be a suitable Caregiver, said User should take all reasonable and sensible precautions and steps to assess such individual. Any information gained from questionnaires or tests on the App are based solely upon information submitted by other individuals or Users of the App. Accordingly, Swishboom makes no guarantees as to its correctness, completeness, or accuracy of such User Content and cannot verify or otherwise ascertain the accuracy of such user-submitted information. Users are solely responsible for undertaking steps to check or otherwise ascertain the accuracy of any user-submitted information. Each user is solely responsible for the accuracy, legality, currency and compliance of its own User Content and will be solely liable for false, misleading, inaccurate, infringing or other actionable material contained or referred to therein.
2.05 Although each member/subscriber/user must agree to these Terms of Use, Swishboom cannot guarantee that each member is at least the required minimum age, nor does Swishboom accept responsibility or liability for any content, communication or other use or access of the App by persons under the age of 13 in violation of these Terms of Use. It is also possible that other Users (including unauthorized users, or “hackers”) may post or transmit offensive or obscene materials through the App and that you may be involuntarily exposed to such offensive or obscene materials. It is also possible for others to obtain personal information about you via your use of the App. These individuals may use your information for purposes other than what you intended. Swishboom is not responsible for the use of any personal information that you disclose on the App. Please carefully select the type of information that you post on the App or release to others. SWISHBOOM DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE APP OR OTHERWISE.
2.06 Although Swishboom attempts to maintain the integrity and accuracy of the information on the App, Swishboom provides any services on an “as is” basis and makes no guarantees as to its correctness, completeness, or accuracy. The App may contain typographical errors, inaccuracies, or other errors or omissions. Also, unauthorized additions, deletions, or alterations could be made to the App by third parties without our knowledge. If you believe that information found on the App is inaccurate or unauthorized, please inform Swishboom by contacting us via information provided below. Swishboom specifically disclaims any implied warranties of merchantability or fitness for a particular purpose. Further, Swishboom does not warrant that your use of the service will be secure, uninterrupted, always available or error-free, or that the service will meet your requirements or that any defects in the service will be corrected. Swishboom disclaims liability for, and no warranty is made with respect to, connectivity and availability.
2.07 Caregivers and Care Seekers are solely responsible for their interactions with each other, and any other parties with whom such user interacts, whether online through the App or offline. Caregivers and Care Seekers agree that Swishboom will not be responsible for any liability incurred as the result of such interactions. ALTHOUGH SWISHBOOM DOES VERIFY EACH CAREGIVER’S EMAIL ADDRESS AND PHONE NUMBER, CHECK THE CAREGIVER’S NAME AGAINST THE SEX OFFENDER REGISTRY IN THE STATE WHERE THE CAREGIVER LISTS A PRIMARY RESIDENCE, AND CONTACT REFERENCES PROVIDED BY THE CAREGIVER (“VERIFICATION PROCESSES”), SUCH VERIFICATION PROCESSES ARE COMPLETED ON THE CAREGIVER’S ENROLLMENT, AND SWISHBOOM DOES NOT HAVE ANY ONGOING VERIFICATION PROCEDURES. LIKEWISE, YOU ACKNOWLEDGE AND AGREE THAT SWISHBOOM DOES NOT CONDUCT BACKGROUND CHECKS ON ANY APP USERS. ALTHOUGH SWISHBOOM DOES CONDUCT LIMITED VERIFICATION AS NOTED ABOVE, SWISHBOOM CANNOT AND DOES NOT GUARANTEE THE ACCURACY OF ANY INFORMATION AND DOES NOT ENDORSE, CERTIFY, OR GUARANTEE ANY INFORMATION ABOUT ANY USER. SWISHBOOM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ITS USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS.
2.08 You acknowledge and agree that Swishboom is not liable, and you agree not to seek to hold Swishboom liable, for the conduct of third parties, including operators of external sites, and that the risk of economic damages from such third parties’ rests entirely with you. Swishboom makes no warranty that the goods or services provided by third parties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Swishboom makes no warranty regarding the quality of any such goods or services, or the accuracy, timeliness, truthfulness, completeness or reliability of any User Content obtained through the App.
3. Ownership
3.01 The App, including all components and underlying technology and the Services (“Swishboom Property”) are the exclusive property of Swishboom or its licensors and are protected by copyright, trademark and other intellectual property laws. You may not use the contents of the App in any manner or for any purpose that is inconsistent with the intended use of the Services or that would otherwise constitute infringement of Swishboom’s or its licensors’ intellectual property rights. Swishboom will permit you to access Appointments and other User Content. All User Content accessed through the App remains the property of the person who created and posted such User Content. Through your use of the Services, you acknowledge that you receive no ownership interest in the Swishboom Property. You may not reproduce or distribute any User Content obtained from the App or the Services in any way except as required by these Terms of Use.
3.02 Subject to your compliance with these Terms of Use, Swishboom grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Swishboom mobile application on a single mobile device or computer that you own or control and to run such copy of the application solely for your own personal purposes.
3.03 If you contact us with any suggestions, comments, concerns, or other feedback (“Feedback”), you assign any and all rights in such Feedback to us in their entirety.
4. Use of the App
4.01 By using or accessing the App, you agree to the following:
(a) The information posted in any profile you create, including your photograph, is posted by you and that you are the exclusive author of your profile and the exclusive owner of your photographs. You assign to Swishboom, with full title guarantee, all copyright in your profile, any photographs posted by you, and any additional information sent to Swishboom at any time in connection with your use of the App. You waive absolutely any and all moral rights to be identified as author of your profile and owner of your photograph and any similar rights in any jurisdiction in the world. By posting information, photographs or content on any part of the App, you automatically grant, and you represent and warrant that you have the right to grant, to Swishboom, free of charge, an irrevocable, perpetual, non-exclusive, royalty-free, fully-paid, worldwide license to use, copy, perform, display, promote, publish and distribute such information, content and photographs and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sub-licenses of the foregoing. You understand and agree that Swishboom, in its sole discretion, reserves the exclusive right to terminate your access and/or deactivate your account if it finds any information you have provided to be inaccurate, unlawful, deceptive, or inconsistent with these Terms of Use.
(b) You will use the App in a manner consistent with any and all applicable laws and regulations. You will not engage in advertising to, or solicitation of, other members to buy or sell any products or services through the App. You will not transmit any chain letters or junk email to other members. To protect our Users against such conduct, Swishboom may limit or otherwise control the number of messages that any User may send in a day. You are solely responsible for your interactions with other Users of the App. Swishboom reserves the right, but has no obligation, to monitor and/or mediate disputes between you and other Users of the App.
(c) You are solely responsible for the content or information you post, publish or display on the App, or transmit to other Users. You shall not post on the App, or transmit to other Users or to Swishboom or its employees, agents or representatives, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not include in your profile any offensive language, including but not limited to offensive anatomical or sexual references, or offensive sexually suggestive or connotative language, and you will not post any photos containing nudity or personal information. Swishboom reserves the right, but has no obligation, to reject any profile or photo that does not comply with the prohibitions set forth in this section. Swishboom reserves the right to refuse service to anyone, at our sole discretion.
(d) You agree that Swishboom has no responsibility or liability for the deletion, corruption or failure to store any messages or other content maintained or transmitted by the App. You acknowledge that features, parameters or other services Swishboom provides may change at any time. You acknowledge that Swishboom reserves the right to sign out, terminate, delete or purge your Account from the App if it is inactive. “Inactive” indicates you have not signed in to the App for at least six (6) months. Swishboom may, but is not obligated to, investigate and terminate your Account if you have misused the App, or behaved in a way which could be regarded as inappropriate, unlawful or illegal. Any personal information you submit to the App is governed by the Privacy Policy. This Privacy Policy encompasses any and all information you may provide to the site either for purposes of submitting an order or to receive further information, updates and promotions about or related to the App. The following is a partial, but not exhaustive, list of the types of actions that are illegal or prohibited under these Terms of Use:
(i) Harassing, abusing or otherwise inappropriately contacting any other User of the App;
(ii) Collecting information about the App or any Users of the App without our written consent;
(iii) Modifying, framing, rendering (or re-rendering), mirroring, truncating, injecting, filtering or changing any content or information contained in the App, without our written consent;
(iv) Using any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor the App or any portion thereof;
(v) Accessing or using the site for commercial or competitive purposes;
(vi) Disguising the origin of information transmitted to, from, or through the App.
(vii) Impersonating another person;
(viii) Distributing viruses or other harmful computer code;
(ix) Allowing any other person or entity to impersonate you to access or use the App;
(x) Using the App for any purpose in violation of local, state, national, international laws
(xi) Using the App in a way that is intended to harm, or a reasonable person would understand would likely result in harm, to the User or others;
(xii) Posting, distributing or reproducing in any way, any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights;
(xiii) Removing any copyright, trademark or other proprietary rights notices contained in the App or forging headers or otherwise manipulating identifiers in order to disguise the origin of any information transmitted through the App;
(xiv) Circumventing any measures implemented by Swishboom aimed at preventing violations of these Terms of Use.
4.02 If Swishboom finds that you violated the terms of this Section or any terms stated herein, Swishboom reserves the right, at its sole discretion, to immediately deactivate your use of the App and Services. By using the Services, you agree that Swishboom may assess, and you will be obligated to pay, $5,000 per each day that you: (i) keep or maintain the User Content of any other User (including but not limited to, names, addresses, phone numbers, or email addresses) or copyrighted material that you scraped (either directly or indirectly in a manual or automatic manner) from the App, or (ii) otherwise misuse or misappropriate User Content or Swishboom Property, including but not limited to, use on a “mirrored,” competitive, or third-party site. This obligation shall be in addition to any other rights Swishboom may have under these Terms or applicable law. Further, in order to protect the integrity of the App and the Service, Swishboom reserves the right at any time in its sole discretion to block Users from certain IP addresses from accessing the App.
5. User Content
5.01 When you post content and information to the Site or in connection with the Services (“User Content”), you represent and warrant to us that (i) you own or have rights to use the User Content, (ii) the posting of the User Content does not violate any rights of any person or entity, and (iii) such User Content is accurate, complete, and correct. User Content includes any information you post to the Services, including but not limited to personal information about you as a User, or information relating to a potential Appointment.
5.02 By posting User Content, you give us and our affiliates a perpetual, nonexclusive, irrevocable, royalty-free, sublicensable and transferable worldwide license to all intellectual property rights you own or control to use, transmit, reproduce, commercialize, distribute, modify, create derivative works from, and otherwise exploit such User Content for any and all purposes and without further notice to you, attribution, and without the requirement of any permission or payment to you or any other person or entity, but at all times in accordance with our Privacy Policy. You also authorize and appoint us as your attorney in fact and agent with full power to enter into and execute any document or undertake any action we may consider appropriate to use or enforce the grant of rights and waivers set forth in these Terms.
6. Teen Users.
6.01 If you are a Teen User, you may register to use the App only if your parent or legal guardian (1) verifiably consents to your registration through the App and/or (2) (where available) becomes a registered User (a “Consenting Parent User”). Consenting Parent Users will have access to all communications between the Teen User and other Users as well as a copy of all emails Swishboom sends to the Teen User. Consenting Parent Users may respond to communications sent by other Users to the Teen User and may report inappropriate message content to Swishboom. Consenting Parent Users may also log in to, update the settings of and terminate their Teen User’s account.
7. Bookings
7.01 All bookings made and processed through Swishboom may be subject to a booking fee at the then current rates, which will be displayed to Care Seekers prior to completing a transaction. In the event a Care Seeker cancels a booking within twenty-four (24) hours prior to the start of the booking, or after the booking has already begun, the Care Seeker agrees to pay the appropriate booking fee that was displayed at the time the booking was made, in addition to any cancellation fees that may be assessed up to a maximum of $20.
7.02 In the event a Caregiver cancels a booking within two (2) hours prior to the start of the booking, or after the booking has already begun, the Caregiver agrees that Swishboom has the right, at its sole discretion, to immediately suspend, terminate, or deactivate the Caregiver’s use of the App and Service.
8. Third Party Obligations
8.01 You acknowledge and agree that the availability of the Swishboom mobile application and the Services is dependent on the third party from whom you received the application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that these Terms of Use are between you and Swishboom and not with the App Store. Swishboom, not the App Store, is solely responsible for the Swishboom mobile application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Swishboom mobile application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the application. You agree to comply with, and your license to use the Swishboom mobile application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms of Use and will have the right to enforce it.
8.02 Without limiting any other terms of these Terms of Use, you must comply with all applicable third-party terms of agreement when using the Services.
9. Payment
9.01 You will be responsible for payment of the applicable subscription fee for the Services at the time you create your account and sign up for the monthly subscription. Your monthly subscription will continue indefinitely until terminated in accordance with these Terms of Use. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period and continue for an additional equivalent period, at Swishboom’s then-current price for such subscription (with each renewal term, the “Term”).
9.02 YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE SUBJECT TO THIS AUTOMATIC RENEWAL FEATURE UNLESS YOU CANCEL YOUR SUBSCRIPTION ON OR BEFORE THE RENEWAL COMMENCEMENT DATE BY CONTACTING SUPPORT@SWISHBOOMAPP.COM. IF YOU DO NOT WISH YOUR SUBSCRIPTION TO RENEW AUTOMATICALLY, PLEASE CONTACT SUPPORT@SWISHBOOMAPP.COM. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. HOWEVER, YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD.
9.03 By subscribing, you authorize our authorized payment processor to charge you now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Swishboom does not receive payment from you, (a) you agree to pay all amounts due upon demand and/or (b) you agree that Swishboom may either terminate or suspend your subscription and continue to attempt to charge your credit or debit card until payment is received (for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received). You agree that Swishboom reserves the right to process any transaction automatically after 24 hours of a completed booking.
(a) Swishboom uses the third party platform, BRAINTREE (http://www. braintreepayments.com/ – Braintree’s Terms and Conditions can be found here: https://www.braintreepayments.com/legal), to process credit and debit card transactions for your Swishboom account. By using Swishboom, agreeing to Swishboom’s Terms of Use, and offering or purchasing Services, you are also agreeing to be bound by BRAINTREE’s Terms of Service.
(b) You expressly understand and agree that BRAINTREE handles all payments or monetary transactions that occur through your use of the App or Service. You expressly understand and agree that Swishboom shall not be liable for any payments or monetary transactions that occur through your use of the App or Service. You also agree that Swishboom shall not be liable for any issues regarding any monetary transactions between you and any other third party, including BRAINTREE.
9.04 We may offer non-subscription Services (“A La Carte Services”), which may subject you to fees charged per usage and/or terms. If you use an A La Carte Service, you agree to pay the fees and any taxes incurred at the time of usage.
10. Limitation of Liability
10.01 SWISHBOOM DOES NOT CONDUCT BACKGROUND CHECKS OR OTHERWISE SCREEN USERS OF THE APP IN ANY WAY. IN NO EVENT WILL SWISHBOOM BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF SWISHBOOM OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.02 EXCEPT IN REGARD TO YOUR INDEMNIFICATION OBLIGATIONS HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SWISHBOOM FOR USE OF THE APP DURING THE TERM OF YOUR MEMBERSHIP/SUBSCIPTION. SWISHBOOM WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL, INCLUDING BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF THE USE OF THIS APP, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER USER OF THE APP, OR ANY INDIVIDUAL YOU ARE INTRODUCED TO VIA THE APP.
11. Assumption of Risk
You assume all risks when using the App and Services, including but not limited to all risks associated with interacting with Users of the App whether it be online or offline, including any risks associated with permitting your child or children to drive in an automobile with Caregivers. Swishboom assumes no liability related to any transportation provided by Caregivers and Swishboom does not control the condition, legality, safety, or suitability of any transportation provided by Caregivers, regardless of whether the automobile or motor vehicle is owned by you. You agree to take all necessary precautions when interacting with other Users of the App, whether it be online or offline, including satisfying yourself with any Caregiver’s credentials, drivers records, insurance policies, employment history, and/or permits sufficient to protect your child. Swishboom is not an owner or operator of automobiles or other transportation vehicles and does not own, resell, sell, furnish, provide, rent, re-rent, manage, or control any vehicles or transportation or travel services. Swishboom’s services are limited to facilitating the availability of the Services.
12. Indemnification
You agree to indemnify, defend and hold harmless Swishboom its officers, directors, employees, agents, licensors, suppliers and any third party information providers from and against all losses, expenses, damages and costs, including, but not limited to all attorneys’ fees charged to Swishboom, arising out of or relating to your User Content; your use of, or inability to use, the App; any violation of these Terms of Use by you or any other person accessing the App on your behalf; your violation of any rights of another party, including any Users; your interactions with other Users; and your violation of any applicable laws, rules or regulations. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
13. Release
If you have a dispute with one or more of the other Users of the App, you release Swishboom (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
14. Resolution of Disputes – Mandatory Arbitration
We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of appeal under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties.
15. Copyrights and Trademarks
15.01 The contents of the App are protected by international copyright and trademark laws. The owner of the copyrights and trademarks, names, logos and service marks are Swishboom, its affiliates or other third party licensors. Except as stated herein, none of the contents of the App may be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted and/or otherwise used in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of Swishboom.
15.02 DMCA Statement
Owners of copyrights or their agents that believe any content on this App infringes upon said copyrights will submit a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) to Swishboom immediately upon discovery. If you wish to file a takedown request via mail or by e-mail, please provide the following information as outlined by the DMCA to the contact information below.
• The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf.
• A description of the copyrighted work that you claim has been infringed and a description of the infringing activity.
• Identification of the location where the original or an authorized copy of the copyrighted work exists.
• Identification of the URL or other specific location on this App where the material that you claim is infringing is located; you must include enough information to allow us to locate the material.
• Your name, address, telephone number, and email address so that we may contact you.
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Any notices given pursuant to the DMCA shall be given to the designated agent of the App at support@swishboom.com or via registered, United States mail sent return receipt to:
Swishboom, LLC
105 S 51st Street
Omaha, NE 68132
16. Miscellaneous
Any provision of these Terms of Use found to be unenforceable will not void nor effect other provisions of the agreement. These Terms of Use, together with any agreements or understandings presented upon registration or booking, represent the parties’ entire understanding relating to the use of the App and supersedes any prior or contemporaneous, conflicting or additional, communications. Swishboom reserves the right to change these Terms of Use or policies relating to the Services at any time and from time to time, and such changes will be effective upon being posted herein. You should visit this page from time to time to review the then current Terms of Use because they are binding on you. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages of the App, which may be posted from time to time. Your continued use of the Services after any such changes and/or postings shall constitute your consent to such changes. If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. You may not assign these Terms of Use without the prior written approval of Swishboom. Any purported assignment in violation of this section shall be void. Swishboom reserves the right to use third party providers in the provision of the Services and/or the goods, service and/or User Content associated therewith. In the event of any litigation of any controversy or dispute arising out of or in connection with these Terms of Use, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any and all rights not expressly granted herein are reserved by Swishboom. Any disputes, actions, claims or causes of action arising out of or in connection with these Terms of Use or the App shall be subject to the exclusive jurisdiction of the state and federal courts located in Douglas County, Nebraska and shall be governed by the law of the State of Nebraska without regard to the conflict of laws provisions thereto.
If you have any questions regarding these terms or wish to contact us for any matter, please email: support@swishboom.com.