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Terms and Conditions


PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING OUR WEBSITE.

You may visit our website without registering but in order to enjoy all the benefits Swanling Innovations Inc.® has to offer, you must register and become a member of this site. All users of this site agree that access to and use of this site is subject to the following terms and conditions and other applicable law.

You agree that by using this site and registering for membership, you are at least 18 years of age, or visiting under the supervision of a parent or guardian, and legally able to enter into a contract.

Swanling Innovations Inc.® reserves the right to revise these terms and conditions. We will post any changes here as they are made. Because your use of the Site following any changes constitutes your agreement to be bound by any changes, you may wish to check this section periodically. If you do not agree to these terms and conditions, please do not use this site.

Terms and Conditions

Site Content

Unless otherwise noted, all materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that appear as part of the Site (collectively, the “Contents”) are copyrights, trademarks, trade dress and/or other intellectual properties owned, controlled or licensed by Swanling Innovations Inc.®. The Site as a whole is protected by copyright and trade dress and all worldwide rights, titles and interests in and to the Site are owned by Swanling Innovations Inc.®. All other Swanling Innovations Inc.® trademarks appearing on this Site are trademarks of Swanling Innovations Inc.®.

The Contents of the Site, and the Site as a whole, are solely for personal, non-commercial (other than for the purchase of merchandise from the Site) use by the users of the Site. You may download or copy the Contents and other downloadable materials displayed on the Site only for your personal use. No right, title or interest in any downloaded materials or software is given to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the Contents, the Site, or any related software.

Product Information

Swanling Innovations Inc.® products displayed on the Site are available in select stores in the United States and select foreign markets while supplies last. In some cases, merchandise displayed for sale on the Site may not be available in all stores. The prices displayed on the Site are quoted in U.S. Dollars and are valid and effective only in the United States for purchases made through the Site.

Design Protection

No rights in the design of Swanling Innovations Inc.® products, or designs incorporated in such products, shall pass to you except as an integral part of products purchased by you. You agree not to copy or reproduce, or cause to be copied or reproduced, either directly or indirectly, Swanling Innovations Inc.® products, product designs, designs incorporated in such products, or product packaging. This Design Protection provision shall survive termination of this Agreement

Colors

We have made every effort to display the colors of our products that appear on the Site as accurately as possible. Because the actual colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate.

Comments and Submissions

All comments, feedback, suggestions, ideas, and other submissions offered or submitted to Swanling Innovations Inc.® in connection with your use of this Site (collectively, “Comments”) shall be Swanling Innovations Inc.® property. Such offer or submission of any Comments constitutes an assignment to Swanling Innovations Inc.® of all worldwide rights, titles and interests in all copyrights and other intellectual properties in the Comments. Swanling Innovations Inc.® is under no obligation to: (1) maintain any Comments in confidence; (2) pay you any compensation for any Comments; or (3) respond to any Comments.

You agree that Comments submitted by you will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). You further agree that Comments submitted by you will not be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments you make.

Privacy Policy

You agree that Swanling Innovations Inc.® may use and/or disclose information consistent with our Privacy Policy.

Indemnification

You agree to defend, indemnify and hold Swanling Innovations Inc.® harmless from and against any and all claims, damages, costs and expenses, including attorneys' fees, arising from or related to your use of the Site.

Links to Other Web Sites

To the extent that this Site contains links to services and resources not within Swanling Innovations Inc.®’s control (“Third-Party Sources”), any claims or concerns regarding any Third-Party Sources, or any link thereto, should be directed to the particular Third-Party Source. You agree that Swanling Innovations Inc.® shall not be liable to you for your use of any Third-Party Sources.

Warranty Disclaimer

Except as otherwise specifically provided, the site and the products offered on the site are provided on an "as is" and "as available" basis and without warranties of any kind, unless specifically set forth otherwise. To the fullest extent permissible pursuant to applicable law, Swanling Innovations Inc.® disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Swanling Innovations Inc.® does not represent or warrant that the functions contained on the site will be uninterrupted or error-free, that the defects will be corrected, or that the site or the server that makes the site available are free of viruses or other harmful components. Swanling Innovations Inc.® does not make any warrantees or representations regarding the use of the materials on the site in terms of their correctness, accuracy, adequacy, usefulness, timeliness, reliability or otherwise. Applicable law may not allow limitations or exclusions on warranties, so the above limitations may not apply to you.

Limitation of Liability

Swanling Innovations Inc.® shall not be liable for any direct, indirect, incidental, special or consequential damages that result from the use of, or the inability to use, the site or materials on the site, even if Swanling Innovations Inc.® has been advised of the possibility of such damages. Applicable law may not allow the limitation of exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Disclaimer

In no event shall Swanling Innovations Inc.® or any of its affiliated entities, suppliers or retailers be liable for any indirect, special, punitive, incidental, exemplary or consequential damages, even if Swanling Innovations Inc.® has been previously advised of the possibility of such damages, whether in an action, under contract, negligence or any other theory, arising out of or in connection with the use, inability to use or performance of the information, services, products and materials available from the site. These limitations shall apply notwithstanding any failure of essential purpose or the existence of any limited remedy. Because some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you.

Inaccuracy Disclaimer

From time to time there may be information on this Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). We apologize for any inconvenience this may cause you.

Miscellaneous

Unless otherwise specified and except to the extent Swanling Innovations Inc.® products are offered for sale in the United States through this Site, this Site and its Contents are displayed solely for the purpose of promoting Swanling Innovations Inc.®’s products available in the United States and select foreign markets. This Site is controlled and operated by Swanling Innovations Inc.® from its offices in Santa Barbara, CA.

Choice of Law and Venue

This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California, without giving effect to any conflict of law provisions. Any dispute arising under this Agreement shall be resolved exclusively by an appropriate federal or state court sitting in the State of California, County of Santa Barbara.

Copyright

The technology underlying, and the entire contents of the site, including but not limited to text, graphics, images, audio clips, digital downloads, data compilation or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of Swanling Innovations Inc.® and is protected by copyright and other intellectual property or proprietary rights. The collective work includes works that are licensed to Swanling Innovations Inc.®. Copyright 2011, Swanling Innovations Inc.®. All rights reserved.

Trademarks

All trademarks, service marks, and trade names of Swanling Innovations Inc.® on the site are trademarks or registered trademarks of Swanling Innovations Inc.®, or of their respective owners.

Third-Party Trademarks

Third-party trademarks, trade names, product names and logos, contained in this website may be the trademarks or registered trademarks of their respective owners.

Notices for Reporting and Making Claims of Copyright Infringement

Swanling Innovations Inc.® will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"). Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted to the following designated agent for this website:

Swanling Innovations Inc.® Customer Relations
Terms & Conditions
5380 Overpass Rd.
Santa Barbara, CA 93111

Via Email

Arbitration Agreement

(a) Swanling Innovations Inc.® and you agree to arbitrate all disputes and claims between us before a single arbitrator. The types of disputes and claims we agree to arbitrate are intended to be broadly interpreted. It applies, without limitation, to:

  • Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory.
  • Claims that arose before these or any prior Terms (including, but not limited to, claims relating to advertising);
  • Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
  • Claims that may arise after termination of these Terms.

For the purposes of this Arbitration Agreement, references to "Swanling Innovations Inc.®”, “we”, and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under these Terms or any prior agreements between us.

Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude your bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.

You agree that, by entering into these Terms, you and Swanling Innovations Inc.® are each waiving the right to a trial by jury or to participate in a class action. These Terms evidence a transaction or website use in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of these Terms.

b) A party who intends to seek arbitration must first send, by U.S. certified mail, a written Notice of Dispute ("Notice") to the other party. A Notice to Swanling Innovations Inc.® should be addressed to: Notice of Dispute, Swanling Innovations Inc.®, 5380 Overpass Rd. Santa Barbara, CA 93111 (“Notice address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought ("Demand"). If Swanling Innovations Inc.® and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Swanling Innovations Inc.® may commence an arbitration proceeding.

During the arbitration, the amount of any settlement offer made by Swanling Innovations Inc.® or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Swanling Innovations Inc.® is entitled.

You may download or copy a form Notice from Swanling Innovations Inc.® General Notice Form (PDF). You may download or copy a form to initiate arbitration from the AAA website at http://www.adr.org/si.asp?id=3477. There is a separate form for California residents, also available on the American Arbitration Association's website at http://www.adr.org/si.asp?id=3485.

c) After Swanling Innovations Inc.® receives notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for more than $75,000. (Currently, the filing fee is $125 for claims under $10,000, but this is subject to change by the arbitration provider. If you are unable to pay this fee, Swanling Innovations Inc.® will pay it directly after receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules") of the American Arbitration Association (the "AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by these Terms. Unless Swanling Innovations Inc.® and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your contact address. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If you choose to proceed either in person or by telephone, we may choose to respond only by telephone or submission. If your claim exceeds $10,000, the AAA Rules will determine whether you have a right to a hearing.

Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. The parties agree that any awards or findings of fact or conclusions of law made in an arbitration of their dispute or claim are made only for the purposes of that arbitration, and may not be used by any other person or entity in any later arbitration of any dispute or claim involving Swanling Innovations Inc.®. The parties agree that in any arbitration of a dispute or claim, neither party will rely for preclusive effect on any award or finding of fact or conclusion of law made in any other arbitration of any dispute or claim to which Swanling Innovations Inc.® was a party.

Except as otherwise provided for herein, Swanling Innovations Inc.® will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Swanling Innovations Inc.® for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules. An award may be entered against a party who fails to appear at a duly noticed hearing.

d) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of Swanling Innovations Inc.®'s last written settlement offer made before an arbitrator was selected, then Swanling Innovations Inc.® will:

  • Pay you either the amount of the award or $2,000 ("the alternative payment"), whichever is greater; and
  • Pay your attorney, if any, the amount of attorney's fees, and reimburse any expenses (including expert witness fees and costs), that your attorney reasonably accrues for investigation, preparing, and pursuing your claim in arbitration (the "attorney's fees").

If Swanling Innovations Inc.® did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney's fees, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney's fees at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.

(e) The right to attorney's fees and expenses discussed in paragraph (d) supplements any right to attorney's fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorney's fees or costs. Although under some laws Swanling Innovations Inc.® may have a right to an award of attorney's fees and expenses if it prevails in an arbitration, Swanling Innovations Inc.® will not seek such an award.

f) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND Swanling Innovations Inc.® AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the parties agree that any injunctive award may be vacated or corrected on appeal by either party to a court of competent jurisdiction for any such error. Each party will bear its own costs and fees on any such appeal. The arbitrator shall not award relief in excess of what these Terms provide or award punitive damages or any other damages not measured by actual damages. Further, unless both you and Swanling Innovations Inc.® agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific proviso is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

(g) All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential, other than as part of an appeal to a court of competent jurisdiction.

Termination

This Agreement is effective unless and until terminated by either you or Swanling Innovations Inc.®. You may terminate this Agreement at any time after which time you agree that you shall not access the Site. Swanling Innovations Inc.® may terminate this Agreement at any time, may do so immediately, without notice, and may deny you access to the Site.

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