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The following terms and conditions apply to the applicable features on the Site:
(a) Membership Rewards. On shipment of each Qualifying Order (defined below) your account will be credited with a reward of ten dollars ($10.00 USD) or such other amount as may be posted from time to time (the "Reward"). A "Qualifying Order" means the first order for merchandise on the Site placed by an individual whom you sponsored or to whom you sent an email invitation to join the Site. Rewards may be redeemed only for the purchase of merchandise on the Site and may not be used for the purchase of gift cards or services. Rewards are not transferable and may not be combined with Rewards belonging to others. At no time may you purchase, sell or barter any Rewards. Rewards have no cash value. They are promotional in nature and are issued without any exchange of money or value from you. As such, Rewards do not constitute property and you do not have a vested property right or interest in the Rewards. We will notify you when any Rewards are posted to your account. At our option, Rewards may expire eighteen months after the date of issuance. We reserve the right at any time in our discretion, and without prior notice, to discontinue the Rewards program or to add or change Rewards program rules, terms or conditions, including changing expiration periods or Rewards values for existing or future Rewards credits.
(b) Vouchers. We offer a service on the Site pursuant to which third party sellers of goods, services and/or experiences ("Merchants") present offers ("Offers") for you to purchase vouchers ("Vouchers") redeemable for Merchant goods, services and/or experiences. Vouchers are subject to the limitations described in each Offer at the time of purchase of the Voucher. Without limiting the foregoing, all Vouchers are subject to the additional terms and conditions found thereon as well as all terms and conditions herein. The specific terms of the each Voucher will control in the event of any conflicting terms contained herein, unless prohibited by law. By purchasing a Voucher, you indicate your acceptance of all of the terms and conditions applicable to such Voucher, as set forth in the Offer, on the Voucher, and herein.
Generally, there are two types of Vouchers that are sold by Merchants, a "Specified Offer" Voucher and a "Specified Dollar" Voucher. A Specified Offer Voucher means that the product, service or experience is easily identified within the terms of the Offer. For example, an Offer for a hot stone massage worth $100 that can be purchased for $50. A "Specified Dollar" Voucher means that the product, service or experience is not easily identifiable within the terms of the Offer such that the Member has the ability to choose such products, services or experiences to be redeemed from the Merchant. For example, an Offer for $50 of merchandise at a specific retail store that can be purchased for $25. A Specified Offer Voucher and a Specified Dollar Voucher are collectively referred to as the Voucher. The Voucher will indicate which type of Voucher you purchased from the Merchant.
Vouchers are void to the extent prohibited by law. Each Voucher may be used only once. Swaychic.com is not responsible for lost or stolen Vouchers or Voucher reference numbers. Vouchers cannot be combined with any other vouchers, third party certificates, coupons, or promotions, unless otherwise specified by Merchant. Reproduction, modification, sale or trade of the Voucher is prohibited unless done so in compliance with applicable law. Unless expressly stated in an Offer or on a Voucher, sales tax which may be due on any goods, services and/or experiences you receive is not included. The Merchant is obligated to honor the Voucher in compliance with all applicable laws. Without limiting the foregoing, use of a Voucher for alcoholic beverages is at the sole discretion of the Merchant and is subject to compliance with all applicable laws. Swaychic.com is not responsible for the redemption of the Voucher.
Each Specified Dollar Voucher includes two separate portions: (1) a paid portion amount which is equal to the amount your credit card is charged for the Voucher (the "Paid Portion"), and (2) a promotional portion amount which is provided at no additional cost to you and which is equal to the difference between the total initial value of the Voucher and the Paid Portion (the "Promotional Portion"). The Promotional Portion must be used the first time the Voucher is used, and any unused Promotional Portion value remaining after the first transaction will be forfeited and cannot be redeemed for cash. In addition the Promotional Portion must be used by the expiration date printed on the Voucher for the Promotional Portion, which may be a different expiration date than for the Paid Portion. If you redeem your Voucher for less than the full amount stated on the Voucher, your purchase will be allocated first against the Paid Portion until the balance of the Paid Portion is $0.00, and then against the Promotional Portion value. If the expiration of the Paid Portion is prohibited under applicable law, then the Voucher shall expire as follows: the Promotional Portion of the Voucher will expire on the date printed on the Voucher, and the Paid Portion of the Voucher will expire on the later of (i) five (5) years from the date the Voucher is issued or (ii) the date required by applicable law. Unless otherwise required by law, Vouchers have no cash value. Cash back will be issued for partial redemption of the Paid Portion of any Voucher to the extent required by law. To the extent that a Merchant is required by law to provide cash back for partial redemptions of the Paid Portion of any Specified Dollar Voucher, the amount of the cash back you would be entitled to receive is equal to the difference between the Paid Portion and the amount you redeemed. For example, if you purchased a $50.00 Voucher for $25.00 (Paid Portion) and only redeemed $20.00 worth of goods or services from the Merchant, you would be entitled to cash back of $5. Likewise, if you redeemed your Specified Dollar Voucher for $30.00 worth of goods or services from the Merchant, you would not be entitled to any cash back since the amount you redeemed ($30) is greater than the Paid Portion ($25). No cash back or credit will be issued for partial redemption of the Promotional Portion of any Specified Dollar Voucher.
A Specified Offer Voucher does not have two separate portions. A Specified Offer Voucher will expire in full as of the expiration date indicated on such Voucher. A Specified Offer Voucher has no cash value and no cash back will be issued.
The Merchant is the seller of the goods, services and/or experiences which you purchase, and is the seller, issuer and obligor of the Voucher. As such, the Merchant shall be fully responsible for any and all loss or damage of any kind, including personal injury or death, (whether in tort, contract, or strict liability) arising out of or related to your redemption or attempted redemption, in whole or in part, of any Voucher. You waive and release Swaychic.com, its parent, subsidiaries and affiliates, and their respective officers, directors, employees, agents, successors, subsidiaries, divisions, distributors, suppliers, affiliates and third parties from any liability for any damages or losses arising out of or otherwise incurred in connection with your redemption or attempted redemption, in whole or in part, of any Voucher.
Swaychic.com is solely the marketing portal for the Merchant. If you have problems with the Voucher or the goods, services and/or experiences provided, or to be provided, in connection with the Voucher, we will use reasonable efforts to assist you in dealing with the Merchant. However, we cannot and do not guarantee the issuance of any credits and/or refunds. Any attempted redemption of any Voucher not consistent with these terms and conditions will render the Voucher null and void. Resale of the Voucher or use for unauthorized advertising, marketing, sweepstakes or other promotional purposes is strictly prohibited. Vouchers are subject to verification and are void if not obtained in accordance with these terms and conditions and through legitimate channels.
SWAYCHIC.COM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO VOUCHERS, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A VOUCHER CODE IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH VOUCHER. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. THE RISK OF LOSS AND TITLE FOR VOUCHERS PASS TO THE PURCHASER UPON OUR ELECTRONIC OR OTHER TRANSMISSION TO THE RECIPIENT, WHICHEVER IS APPLICABLE. IN NO EVENT WILL SWAYCHIC.COM BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES.
This Section 3(b) applies only to the Voucher service and no other service or part of the Site.
(c) Return Credit. Items that have been returned for a Swaychic.com merchandise credit will be refunded in the form of a merchandise credit (a "Merchandise Credit") at the original purchase price, plus applicable sales tax, and, if applicable, the return shipping charges will be deducted from the amount of the Merchandise Credit. Merchandise Credit may be redeemed only for the purchase of merchandise on the Site and may not be used for the purchase of gift cards or services. Merchandise Credit is not transferable and may not be combined with Merchandise Credit belonging to others. At no time may you purchase, sell or barter any Merchandise Credit. Merchandise Credit is not redeemable for cash, unless required by law. The obligations represented by outstanding Merchandise Credit may at any time be assigned to and assumed by any affiliate of, or successor to, the present or any future owner of the Swaychic.com website, or any third party under contract with such present or future owner. You, as a Member, expressly consent to and authorize any such future assignment and assumption of outstanding Merchandise Credit obligations, and you agree to look solely to such assignee in the event of any such transfer.
(d) Return Refund. Items that have been returned for a refund to your original form of payment will be refunded (a "Return Refund") at the original purchase price plus applicable sales tax and the return shipping charges (if any) will be deducted from your refund. Please note that in connection with the Return Refund, a refund to your original form of payment includes restoring any prior Merchandise Credit or Membership Rewards that you may have used for your purchase to your Swaychic.com Member account. Refunds to your original form of payment will appear on your statement within seven days.
(e) Credit Balances. Any credit balance (including a Reward balance and/or Merchandise Credit) will be automatically applied to your next purchase of merchandise from the Site and the order of redemption of such credits will be determined by Swaychic.com. To the extent your credits exceed the amount of your total purchase, the excess credit balance will remain in your account to be applied to your next purchase, subject to the foregoing terms and conditions. If your account and/or membership is terminated for any reason, any credit balances in your account may be cancelled, except as prohibited by law. Account balances are determined by Swaychic.com and such determination is final.
(f) Text Messages. If you provided us with your mobile phone number, you must have a text messaging-enabled mobile device with a text messaging plan in order to receive text messages from us. This service is free from Swaychic.com but charges from your carrier for usage may apply and you are responsible for all such charges.
(g) Member Email and Postings. The Site may provide Members with the ability to send email messages to others and to post messages on the Site. You are solely responsible for your account, password, profile, messages, notes, text, information, opinions, ideas and any other content you post, upload, submit, publish, or display (hereinafter "post") on or through the Site, or transmit to or share with other Members (collectively, the "Member Content"). Any Member Content that is posted will not be treated as confidential. Swaychic.com has the right but not the obligation to monitor and decline, edit, or remove (without notice) all or any portion of any Member Content for any reason or no reason. If Swaychic.com chooses at any time, in its sole discretion, to monitor Member Content, it still has no responsibility for the Member Content or for the conduct of the Member posting Member Content or to edit or remove any Member Content, except in compliance with Section 14 below. If you are involved in a dispute with one or more Members of Swaychic.com, you release Swaychic.com (including its officers, directors, affiliates, and employees) from claims, demands, and damages (actual and consequential) of every kind arising out of or in any way connected to any dispute.
When you post or otherwise make available any Member Content for inclusion on any part of the Site, you are hereby granting Swaychic.com an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, transmit, reproduce, adapt, modify, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), create collective works and distribute such Member Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, or for Swaychic.com's (and its successors' and affiliates') business including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media or distribution method (now known or later developed), to prepare derivative works of, or incorporate into other works, such Member Content, and to grant and authorize sublicenses of the foregoing. You represent and warrant that you will not provide any Member Content to which you do not have the full right to grant the license specified in this Section 3(f). You waive all moral rights in the Member Content which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant to Swaychic.com that Swaychic.com is free to exercise its rights to and/or implement your Member Content if it so desires, without obtaining permission or license from any third party and without reference to you or any other person.
All Member Content is the responsibility of the Member, not Swaychic.com. In addition to the restrictions set forth in Section 1, you agree not to use the Site to post content or other communications that contain (i) political, libelous or otherwise unlawful, abusive, or obscene material; (ii) advertisements of any kind; (iii) personal information (such as social security numbers, addresses, phone numbers, etc.); (iv) confidential information of Swaychic.com, its parent, subsidiaries, or affiliates; (v) any chain letters, pyramid schemes, spam, contests, or promotional material; (vi) messages that offer unauthorized downloads of any copyrighted or private information; and (vii) information similar or related to the foregoing. You further agree not to send email invitations to join the Site (each, an "Invite") to people who do not know you or who are unlikely to recognize you as a known contact. We may from time to time use the information you provide for Invites to send reminders to such invitees to accept the Invite to become a Member.
UNDER NO CIRCUMSTANCE SHALL ANY DISCLOSURE OF ANY MEMBER CONTENT TO SWAYCHIC.COM BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION OR ATTRIBUTION. BY SUBMITTING ANY MEMBER CONTENT TO OR THROUGH SWAYCHIC.COM, YOU REPRESENT AND WARRANT THAT ALL YOUR MEMBER CONTENT WILL NOT VIOLATE ANY RIGHT OF ANY THIRD PARTY, INCLUDING COPYRIGHT, TRADEMARK, PRIVACY, OR OTHER PERSONAL OR PROPRIETARY RIGHTS. YOU REPRESENT AND WARRANT THAT NO MEMBER CONTENT WILL BE OR CONTAIN LIBELOUS OR OTHERWISE UNLAWFUL, ABUSIVE, OR OBSCENE MATERIAL. YOU ARE AND SHALL REMAIN SOLELY RESPONSIBLE FOR YOUR MEMBER CONTENT. YOU REPRESENT AND WARRANT TO SWAYCHIC.COM THAT SWAYCHIC.COM IS FREE TO USE THE MEMBER CONTENT, AND IMPLEMENT ANY SUGGESTIONS CONTAINED THEREIN, IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY SWAYCHIC.COM, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY AND WITHOUT ANY COMPENSATION TO YOU.
4. Accuracy of Content; Limitations on Quantity. Excluding Member Content, the information on this Site is believed to be complete and reliable; however, the information may contain typographical errors, pricing errors, and other errors or inaccuracies. We will use reasonable efforts to correct errors as soon as practicable. We reserve the right to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies, or omission; and (iii) make changes to prices, content, promotion offers, product descriptions or specifications, or other information without obligation to issue any notice of such changes (including after an order has been submitted, acknowledged, shipped, or received, except as prohibited by law ). We also reserve the right to limit quantities (including after an order has been submitted and/or acknowledged) and to revise, suspend, or terminate an event, promotion, or Boutique at any time without notice (including after an order has been submitted and/or acknowledged). The inclusion of any products, services and/or experiences on this Site at a particular time does not guarantee that the products, services and/or experiences will be available. If a product, service and/or experience offered and sold by us is not as described, your sole remedy is to return it subject to the terms set forth herein.
6. Links to Third-Party Websites; No Implied Endorsements. This Site may contain links to other websites on the Internet. You acknowledge that we have no control over such websites and that we are not responsible for the accuracy, content, legality, or any other aspect of any linked website. In no event shall any reference to any third party, third party website, or third party product or service be construed as an approval or endorsement by us of that third party, third party website, or of any product or service provided by a third party.
8. Disclaimers. Swaychic.com is not and shall not be at any time responsible or liable for any loss or damage of any kind, including personal injury or death, (whether in tort, contract, or strict liability) arising out of or related to any Member Content, or to any act or omission by Members of the Site, by Swaychic.com or by any third party or by any of the equipment or programming associated with or utilized by the Site. Any content submitted by our vendors does not necessarily reflect the opinions or policies of Swaychic.com.
Swaychic.com assumes no responsibility for any error, omission, interruption, delay, communications line failure, deletion, defect, delay in operation or transmission, theft or destruction or unauthorized access to, or alteration of, any Member Content or other Member communications. Swaychic.com is not responsible for any problems or technical malfunction of any telephone or cable network or lines, computer systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on the Site, including any injury or damage to Member's or other person's computer related to or resulting from participation on or through the Site.
THE SITE, ITS CONTENT AND ALL TEXT, IMAGES, MERCHANDISE, AND OTHER INFORMATION ON, ACCESSIBLE FROM OR AVAILABLE THROUGH THIS SITE ARE PROVIDED ON AN "AS AVAILABLE" AND "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, SWAYCHIC.COM DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THIS SITE IS FREE OF ERRORS; (ii) THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THIS SITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS
9. Limitation of Liability. IN NO EVENT SHALL SWAYCHIC.COM, Orange Truck LLC, ITS PARENT, SUBSIDIARIES, DIVISIONS, OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE BE LIABLE TO ANY USER OF THE SITE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR ANY INFORMATION CONTAINED THEREON OR STORED OR MAINTAINED BY SWAYCHIC.COM, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF SWAYCHIC.COM HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL THE TOTAL LIABILITY OF SWAYCHIC.COM, ITS PARENT, SUBSIDIARIES, OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THIS SITE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT YOU PAID TO SWAYCHIC.COM IN CONNECTION WITH THE APPLICABLE EVENT, PROMOTION OR BOUTIQUE GIVING RISE TO SUCH LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SWAYCHIC.COM, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED IN YOUR ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF OF SWAYCHIC.COM.
You hereby acknowledge that the preceding paragraph shall apply to all content, merchandise, products, services and experiences available through the Site. Because some states do not allow limitations on implied warranties or the exclusion or limitation of certain damages, in such states some or all of the above disclaimers or exclusions may not apply and liability will be limited to the fullest extent permitted by applicable law.
10. International Use. We make no representation that information on this Site is appropriate or available for use outside the United States. Those who choose to access this Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
11. Risk of Loss. The items purchased from our Site are shipped by a third party carrier pursuant to a shipment contract. As a result, risk of loss and title for such items pass to you upon our delivery to the carrier.
12. Swaychic.com Affiliates. Swaychic.com is not affiliated with websites or third parties that sell or advertise our products, services and/or experiences without a written agreement with us. Swaychic.com reserves the right to void all service, return, and other policies for orders and Swaychic.com products that were purchased through unauthorized sellers. Swaychic.com is not responsible for any representations by unauthorized sellers.
14. Copyright Infringement; Notice and Take Down Procedures. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any materials on this Site infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative, and must: (a) identify the allegedly infringing materials; (b) indicate where on the Site the infringing materials are located; (c) provide your name and contact information; (d) state that you have a good faith belief that the materials are infringing; (e) state that the information in your claim is accurate; and (f) indicate that "under penalty of perjury" you are the lawful copyright owner or are authorized to act on the owner's behalf. If you believe that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send this Site a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for further information. Our contact for copyright issues relating to this Site (including the notices and counter-notices) is: Copyright Agent, Swaychic.com, firstname.lastname@example.org. Please note that there are penalties for false claims under the DMCA. One or more patents may apply to this website, including without limitation: U.S. Patent Nos. 5,528,490; 5,761,649; and 6,029,142 and any other patents that may issue in the future which are related to the foregoing patents.
Last Updated: October 14, 2010
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