The makers of “SWORL,” provides software and photo printing services that allow its customers to print, frame and deliver framed photos. Visitors to the SWORL website can also become registered users of SWORL. The services offered by Northwest Framing LLC. (“SWORL”, “us” or “we”) include the SWORL website (the “Website”), our App for your app-enabled mobile device (the “App”) and any other features, content, or services offered from time to time by SWORL in connection with the Website or App (collectively, the “Services”).
This Terms and Conditions Agreement (“Agreement”) sets forth the legally binding terms for your use of the Services. By using the Services, you agree to be bound by this Agreement, whether you are a “Visitor” (which means that you simply browse the Website or App) or you are a “User” (which means that you have registered with SWORL and set up an Account).
You represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and/or the entity that you purport to represent.
1. Additional Terms. In order to participate in or receive certain Services, you may be required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the specific Services in which you choose to participate or that you choose to receive, those additional terms are hereby incorporated into this Agreement. To the extent there is a conflict between the terms in this Agreement and the terms and conditions posted for a specific area of the Website or App or in connection with a Service, the latter shall have precedence with respect to your use of that area of the Website, App or Service.
2. Amendments. SWORL may modify this Agreement from time to time and such modification shall be effective: (1) for Users who first use the Services after the posting, upon posting by SWORL on the Website, (2) for existing Users, thirty (30) days after posting by SWORL on the Website, or (3) for existing users, if the modifications to the Agreement are material, thirty (30) days after SWORL sent an e-mail containing a notification of such modifications and the continued use of the Services by the user thereafter, which shall constitute the User’s acceptance of the amended Agreement. If you do not agree to the modification, you must cease your use of the Services.
3. Eligibility. By using the Services, you represent and warrant that: (a) all required registration information you submit is truthful, complete and accurate; (b) you will maintain the accuracy of such information, and will update the information if it changes; (c) you are thirteen (13) years of age or older; and (d) your use of the Services does not violate any applicable law or regulation. Your SWORL Account (the “Account”) may be deleted without warning for any reason in SWORL’s sole discretion, including without limitation, if you post prohibited content or if we believe that you are younger than thirteen (13).
4. Term. This Agreement shall remain in full force and effect at all times while you use or access the Services or are a User. You may delete your Account at any time, for any reason by following the instructions on the “My SWORL Account” page. SWORL MAY TERMINATE YOUR ACCOUNT AT ANY TIME AND FOR ANY REASON, EFFECTIVE UPON SENDING NOTICE TO YOU AT THE THEN-CURRENT E-MAIL ADDRESS IN YOUR ACCOUNT PROFILE. Even after any termination, Sections 8 through 21 of this Agreement shall survive termination and remain in effect. You understand that termination of this Agreement and your Account involves deletion of your SWORL profile information from our live databases as well as any Content that you uploaded to the SWORL Website or App using such Account. SWORL will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
5. Conditions of sale.
5.1 Eligibility; Credit Card Terms. To order any product from SWORL, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction. You will be required to give us a valid credit card number (VISA, MasterCard, American Express or any other issuer accepted by us) and associated payment information at the time you order any framed photo product hereunder, including all of the following: (i) your name as it appears on the card, (ii) the credit card type, (iii) the date of expiration of your credit card, (iv) billing address, and (v) any activation numbers or codes needed to charge your card. SWORL currently does not accept cash, checks or any other payment form, although in the future we may change this policy in our sole discretion. Your credit card issuer agreement governs your use of your designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. You agree that no additional notice or consent is required before SWORL invoices the credit card for all amounts due and payable. By providing SWORL with your credit card number and associated payment information, you agree that SWORL is authorized to immediately invoice your account for all fees and charges due and payable to SWORL as a result of your purchase of any Framed Photos or other products. You agree to immediately notify SWORL of any change in your billing address or the credit card used for payment hereunder. SWORL reserves the right, at any time, in its sole discretion, to change its prices and billing methods for products sold, either immediately upon posting on the Website or in the App, or by e-mail delivery to you.
5.2 Fees and Charges. You agree to pay all fees and charges incurred in connection with your orders and purchases (including shipping and any taxes imposed on your orders and purchases, including, but not limited to, sales, use or value-added taxes, unless you provide SWORL with sufficient evidence that the order and purchase is made solely for the resale or redistribution of the Framed Photo or other product to your customers) at the rates in effect when the charges were incurred. SWORL may automatically charge and withhold such taxes for orders to be delivered to addresses within any jurisdictions that it deems is required.
5.3 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement, or such dispute will be deemed waived. Billing disputes should be sent to the following address: SWORL Customer Service, 1964 4th Ave S, Seattle WA 98134 or via SWORL’s Support. If SWORL does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by SWORL or its agents.
5.4 Returns. All sales of Framed Photos and other products are subject to SWORL’s then-current return policies, as posted on the Website from time to time.
5.5 Gift Cards.
5.5.1 Purchasing Gift Cards. SWORL offers gift cards (“Gift Cards”) that can be purchased and redeemed through the SWORL app and website. You must have an Account with SWORL to purchase or redeem Gift Cards; purchasing or redeeming Gift Cards constitutes acceptance of the SWORL Terms and Conditions. Unless expressly stated otherwise, Gift Cards will be provided by SWORL in electronic form only.
5.5.2 Redeeming Gift Cards. Gift Cards may only be redeemed through the SWORL app or website and may not be redeemed or credited towards previous purchases. Every purchase made with a Gift Card (plus any applicable shipping/handling fees, taxes, and other fees that may apply) is deducted from the Gift Card balance and any unused Gift Card balance will remain on the Gift Card account. Gift Card balances will be used against the total order placed and not against specific items of such order. If any purchase exceeds the Gift Card account, the balance must be paid with a credit card or any other payment method accepted.
5.5.3 Gift Card Account. The balance of a Gift Card can be reviewed by the purchaser or holder of the Gift Card by entering the respective Gift Card code into the form that is provided by SWORL for this purpose on the Website.
5.5.4 Restrictions. Balances on multiple Gift Cards cannot be combined into an aggregate balance on one or more new Gift Cards and Gift Cards cannot be reloaded or recharged, or redeemed together with a coupon or other Gift Cards for the same order. Except as expressly allowed by SWORL, Gift Cards may not be transferred for value or resold. Except to the extent required by applicable law, Gift Cards cannot be redeemed for cash or checks and Gift Card balances cannot be transferred to credit card accounts or accounts of other means of payment. If applicable law requires SWORL to redeem Gift Cards for cash, check, or other means of payment, SWORL reserves the right to select any of the foregoing in its sole discretion. Gift Cards can only be redeemed for purchases in the currency that matches the personal currency preferences set for the respective Account. SWORL reserves the right to reject the redemption of Gift Cards and request alternative forms of payment, terminate the respective Account, and take legal actions, if SWORL reasonably believes that Gift Cards are abused or used or obtained fraudulently.
5.5.5 Risk of Loss. The title and risk of loss for Gift Cards passes upon electronic transmission of the Gift Card by SWORL to the purchaser of the Gift Card. SWORL has no obligation to replace lost or stolen Gift Cards, but you can report lost or stolen Gift Cards by contacting SWORL.
5.5.6 No expiration date or fees. Gift Cards have no expiration date and SWORL charges no fee in connection with the purchase (except for the selected purchase price of the Gift Card) or redemption of Gift Cards.
6. Order acceptance policy. Your receipt of an electronic or other form of order confirmation does not signify SWORL’s acceptance of your order. SWORL reserves the right, in its sole discretion, at any time after receipt of your order, to accept or decline your order for any reason or no reason. SWORL further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by SWORL upon our delivery of the products that you have ordered. We may require additional verifications or information before accepting any order.
7. Title and Risk of Loss. All sales of Framed Photos and other products are made Delivered at Place (DAP) [Incoterms 2010]. Your designated point of delivery, and title and risk of loss to each shipment of the Framed Photos and other products shall pass to you when SWORL makes such delivery at the named place of destination.
8. Password. When you sign up to become a User, you will also be asked to create a username and a password. You are solely and entirely responsible for maintaining the confidentiality of your password. You agree not to use the Account, username, or password of another User at any time. You agree to notify SWORL immediately if you suspect any unauthorized use of your Account or access to your password. You are solely responsible for any and all use of your Account.
9. Your Framed Photo Content.
9.1 Definitions. “Content” includes any text, images, photos, works of authorship, and other material. Your “Framed Photo Content” includes any Content that you include in or submit to SWORL for Framed Photos. Subject to the terms of this Section 9, SWORL HAS NO OWNERSHIP OF ANY OF YOUR FRAMED PHOTO CONTENT.
9.2 Ownership of Your Framed Photo Content. You represent and warrant that: (i) you own or otherwise have all necessary rights to your Content to grant the licenses set forth in this section for the Framed Photo Content that you provide for our print services to have them printed in a Framed Photo, and (ii) your Framed Photo Content does not violate or infringe upon the privacy rights, publicity rights, copyright rights, trademark rights, or other rights of any person or entity.
9.3 Submission of Your Framed Photo Content. You may use the SWORL software to submit your Framed Photo Content to SWORL for printing, provided that your Framed Photo Content is compatible with the SWORL software.
9.4 License. In order for SWORL to be able to provide you with our Services, you hereby agree, upon each submission of Framed Photo Content, to grant SWORL the following licenses to use your Framed Photo Content:
9.4.1 License to print your Framed Photos. You hereby grant to SWORL an irrevocable, non-exclusive, worldwide, fully-paid and royalty-free license (“License”) to reproduce and distribute your Framed Photo Content for the purpose of printing the Framed Photos that you order. You agree that SWORL reserves the right to maintain the electronic files for any Framed Photo(s) to fulfill any further orders which may be placed for such Framed Photo(s) and to maintain an archival copy of the printed Framed Photo.
9.4.2 License to use your Framed Photo Content for optional SWORL features. In the event you decide to use any optional feature that SWORL may offer, such as allowing others to search for and see an electronic preview of your Framed Photo(s) or applications to use the Services in connection with other services and online communities, you hereby grant to SWORL an irrevocable, worldwide, fully-paid, royalty-free License to reproduce, distribute, publicly display, use, commercially exploit, and otherwise make available the designated Framed Photo(s), any Framed Photo Content therein, and any other data and information you provide in connection with the optional feature, as required for SWORL to provide such optional feature.
10. SWORL Content. The Services contain and employ various intellectual properties of SWORL, including without limitation, formulas, processes, software (and any modifications, improvements or upgrades thereto), source and object codes, data, designs, copyrighted materials, proprietary information, trademarks, and other properties of SWORL (collectively, the “SWORL IP Content”). SWORL owns and retains all proprietary rights in the SWORL Content and the Services. To the extent the SWORL Content or Services include any User content or Framed Photo Content, the applicable User and SWORL respectively hereby retain all rights each may have in such content Services. With respect to any text, images, or photos of SWORL publically displayed on the Website, App or Services, (the “SWORL Photo Content”), SWORL hereby grants you a limited, revocable, non-sublicensable, non-assignable, non-transferable license to reproduce and publicly display such SWORL Photo Content (excluding any SWORL IP Content) solely for your personal use in connection with viewing the Website and using the Services. Except as provided in the previous sentence, you shall not reproduce, distribute, publicly perform (including by means of digital audio transmission), translate, reverse-engineer publicly display, create derivative works of, and otherwise use the SWORL Content or SWORL Photo Content.
11. Your Content and Activity. You are solely responsible for any and all Framed Photo Content that is posted by or through your Account on any Services (including any Content that you may have received by third parties) included in Framed Photos submitted by you for print services.
11.1 Prohibited Content. You agree that you will not post, submit for print services, or otherwise provide to the Services, any Prohibited Content. “Prohibited Content” includes Framed Photo Content or Other Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) bullies, harasses, or advocates stalking, bullying, or harassment, of another person; (iii) involves the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, or “spamming,”; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) promotes, reproduces, performs or distributes an illegal or unauthorized copy of another person’s work that is protected by copyright or trade secret law, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music or links to pirated music files; (vi) is pornographic in nature; (vii) is involved in the exploitation of persons under the age of 13 in a sexual or violent manner, or solicits personal information from anyone under 13; (viiI) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (ix) solicits passwords or personally identifying information for commercial or unlawful purposes from other Users; (x) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; (xi) violates any applicable law, including, but not limited to laws and regulations governing export control, unfair competition, anti-discrimination and false advertising; (xii) involves commercial activities that are detrimental to the interests of SWORL; or (xiii) otherwise violates this Agreement or creates liability for SWORL. SWORL RESERVES THE RIGHT TO REFUSE TO PRINT ANY FRAMED PHOTO THAT CONTAINS CONTENT THAT IT DETERMINES, IN IT SOLE DISCRETION, IS PROHIBITED CONTENT, and you agree to defend, indemnify and hold SWORL and its subsidiaries, affiliates, officers, employees, suppliers, service providers, and partner companies harmless from and against any claims, losses, liabilities, damages and expenses arising out of or relating to any breach of this section.
11.2 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s express permission.
11.3 User Interaction. You will not use (a) the Services and (b) any information obtained from the Services in order to harass, abuse, send Spam to, or harm another person, or in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent.
11.4 No Disruption. You will not: (i) cover or obscure the banner advertisements that might be placed on your personal profile page, or any SWORL page via HTML/CSS, scripting, or any other means, if any; (ii) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services; or (iii) introduce software or automated agents to the Services, generate automated messages, or to strip or mine data from the Services.
11.5 Miscellaneous. You will not attempt to impersonate another User or person, including any employee of SWORL. You will use the Services in a manner consistent with any and all applicable laws and regulations.
11.6 Enforcement by SWORL. SWORL has the right (but not the obligation) to review any Content and delete any Content that in the sole judgment of SWORL violates this Agreement; is Prohibited Content, is illegal, violates the rights, harms, or threatens the safety of any User or any other person; or creates liability for SWORL, its suppliers, service providers, partner companies, or any User. SWORL reserves the right (but has no obligation) to investigate and take action in its sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing Prohibited Content from the Services, terminating your account, reporting you to law enforcement authorities, and taking legal action against you.
12. Copyright Policy. It is SWORL’s policy to terminate User privileges of any User who repeatedly infringes copyright upon prompt notification to SWORL by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services or used in any Framed Photo in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written 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; (vi) 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 authorized to act on the copyright owner’s behalf. Contact information for SWORL’s Copyright Agent for notice of claims of copyright infringement is as follows:
Attn: Copyright Agent
1964 4th Ave S
Seattle WA 98134
14. Limited Warranty.
14.1 Limited Warranty for Framed Photos. SWORL warrants that Framed Photos will be free of any defects in materials and workmanship. SWORL will, at its own expense and at its sole obligation and your exclusive remedy, replace any defective Framed Photos that you report to SWORL via SWORL’s Order Support within fourteen (14) days of your receipt thereof.
14.2 Exceptions to Warranty. SWORL does not proof, edit, modify or change any of the Content in the Framed Photos that you post or submit for print services. As a result, the foregoing limited warranty does not include the obligation to correct (a) typographical errors, mistakes in grammar, unfinished text or other text errors; (b) low resolution images that may appear blurry in print; (c) design issues, including Framed Photo style and color; or (d) any other creative choices that you make related to the Framed Photo. Your Framed Photo CONTENT CANNOT BE EDITED ONCE IT IS UPLOADED TO THE WEBSITE. Therefore, you agree that you will not upload Framed Photo Content unless it has been fully proofed and you are satisfied that it is ready to be printed, and by uploading any Framed Photo Content, you hereby represent and warrant that it has been proofed to your satisfaction and ready to be printed “As-Is.” SWORL is not responsible for any incorrect or inaccurate Content (including any profile information) posted on the Services. SWORL assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or User communication. SWORL is not responsible for any problems or technical malfunction of any hardware and software due to technical problems on the Internet or at the Website or App or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Services. Under no circumstances shall SWORL be responsible for any loss or damage, including personal injury or death, resulting from use of the Services or from any Content posted on the Website or App or transmitted to Users, or any interactions between Users of the Services, whether online or offline.
14.3 Disclaimers. TO THE FULLEST EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, (A) THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE AND EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 14.1 ABOVE, (B) SWORL HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. FOR FURTHER WARRANTY INFORMATION YOU MAY CONTACT SWORL’s CUSTOMER SUPPORT DEPARTMENT AT 1964 4TH AVE S SEATTLE WA 98134.
15. Limitation on Liability. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, SWORL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS ARISING FROM YOUR USE OF THE SERVICES, EVEN IF SWORL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SWORL’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS ($50), OR THE AMOUNTS YOU PAID TO SWORL IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE SWORL’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SWORL OR ITS AGENTS OR EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
16. Release. You hereby release SWORL, together with its owners, shareholders, directors, officers, employees, agents, successors, assigns and affiliates (collectively, the “SWORL Released Parties”), from any and all claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with other Users or third-parties.
If you are a California resident, you hereby waive, the fullest extent allowable under applicable law, California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
17. Indemnity. You agree to defend, indemnify, and hold SWORL, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services in violation of this Agreement and/or arising from your breach of any provision of this Agreement.
18. Electronic communications. The communications between you and SWORL use electronic means, whether you visit the Website or App or otherwise use the Service or send SWORL e-mails, or whether SWORL posts notices on the Website or App or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from SWORL in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SWORL provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights.
19. Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of Washington without giving effect to any conflict of laws principles or any laws that would provide the application of the law of another jurisdiction other than Washington. You hereby irrevocably agree to submit to the jurisdiction of, and agree that venue is proper in, the King County Superior Court located in Seattle, Washington (USA) and the federal courts located in the Western District of Washington (USA) in such legal action or proceeding. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded.
20. Force Majeure. A party will not be liable for non-performance or delay in performance (other than of obligations regarding payment of money) caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any “act of God.”
22. Copyright/Trademark Information. Copyright © 2014, SWORL. All rights reserved. The trademarks, logos and service marks (“Marks”) displayed on the Website and App or in connection with the Services are the property of SWORL or other third parties. You are not permitted to use these Marks without the prior written consent of the third party that owns the Mark.