The following are the terms and conditions for use of the TheSwami.com or TheSwami.net, collectively the Site, as defined below, between TheSwami.com and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You"). Please read them carefully. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SITE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SITE ("AGREEMENT"). The Site is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
"Account" refers to the billing account for the Site. For free users, Account shall refer to their access privileges and conditions associated with their login credentials.
"Customer Data" means the data, information, files, materials or content submitted by Users through access to the Site.
"Documentation" means any accompanying proprietary documentation made available to users by TheSwami.com, including any documentation available online or otherwise.
"Proprietary Information" means the proprietary information, data, statistics or materials provided by TheSwami.com to users of the Site.
"Site" means the web location of the information, data, statistics or materials provided by TheSwami.com to users. The Site may be accessed by via the main page at TheSwami.com or TheSwami.net.
2. FEES AND SERVICES . Subject to Section 14 herein, a limited access Account is provided without charge to You. Limited access Accounts shall not be provided access to all Site content. The portion of the Site to which access is granted to without charge is at the sole discretion of TheSwami.com. Full access Accounts are subject to payment of the then current registration fees pursuant to any and all notices of such fees as may be listed at the Site. TheSwami.com may change its fees and payment policies for full Site access from time to time at its discretion. The changes to the fees or payment policies are effective upon Your acceptance of such changes at the time of any renewal payment, if any. Current fees will be clearly listed and provided to users at the Site (or such other URL TheSwami.com may provide from time to time). Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balances or unpaid fees become immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by TheSwami.com will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your Account.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY . To register for the Site, You must complete the registration process by providing TheSwami.com with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You shall protect your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify TheSwami.com immediately upon learning of any unauthorized use of Your Account or any other breach of security.
4. NONEXCLUSIVE LICENSE . TheSwami.com hereby grants You a limited, revocable, non-exclusive, non-sublicensable license to use the Site, and its associated information, data, statistics and materials. Subject to the terms and conditions of this Agreement, You may remotely access, view and download Site stored information, data, statistics and materials from any machine through use of your login credentials for your Account. Your license to, use of and access to Site (which may include, without limitation, associated information, data, statistics and materials) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following:
You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Site or its associated information, data, statistics and materials; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of any Software or Code to which you obtain access, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to your access and usage rights in the Site and any associated information, data, statistics and materials; (iv) remove any proprietary notices or labels appearing on any information or content contained at the Site; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Site. You will use the Site and any associated information, data, statistics and materials solely for Your own internal use, and will not make the Site or any associated information, data, statistics and materials available for any other purposes, including, but not limited to, providing access to or copies of the Site or any associated information, data, statistics and materials to a third party non-subscriber, without the prior written consent of TheSwami.com. You will comply with all applicable laws and regulations in Your use of and access to the Site and its associated information, data, statistics and materials.
This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, You must destroy all originals and copies of any Site specific information, data, statistics and materials in Your possession and so certify in writing to TheSwami.com within three (3) business days of termination and cease any further use of the Site without the express written consent of TheSwami.com.
5. CONFIDENTIALITY . "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by TheSwami.com and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify TheSwami.com of any unauthorized use of Your account or any other breach of security known to You.
8. INDEMNIFICATION. You agree to indemnify, hold harmless and defend TheSwami.com and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against TheSwami.com or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by TheSwami.com or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Site, or (iii) Your violations of applicable laws, rules or regulations in connection with the Site or associated information, data, statistics and materials. In such a case, TheSwami.com will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. TheSwami.com reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. THIRD PARTIES. If You provide access to Your Account or any portion thereof to any third party or use the Site to collect information on behalf of any third party ("Third Party"), whether or not You are authorized to do so by TheSwami.com or its wholly owned subsidiaries, the terms of this Section 9 shall apply to You.
If You use the Site on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party , (b) as between the Third Party and You, the Third Party owns any rights to Customer Data in the applicable account, and (c) You shall not disclose Third Party's Customer Data to any other party without the Third Party's consent.
You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. TheSwami.com and its wholly owned subsidiaries make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to TheSwami.com and its wholly owned subsidiaries, the Site, its associated information, data, statistics and materials, or the use of the same. You agree to indemnify, hold harmless and defend TheSwami.com and its wholly owned subsidiaries, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against TheSwami.com or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by TheSwami.com, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Site or its associated information, data, statistics and materials to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Site or its associated information, data, statistics and materials; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Site or its associated information, data, statistics and materials.
10. DISCLAIMER OF WARRANTIES . The information and services included in or available through the Site or its associated information, data, statistics and materials, including any reports, forms, data files or calculations therein, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. TheSwami.com and/or its respective suppliers may make improvements and/or changes in the Site at any time, with or without notice. TheSwami.com does not represent or warrant that the Site will be uninterrupted or error-free, that defects will be corrected, or that the Site or its associated information, data, statistics and materials are free of viruses or other harmful components. TheSwami.com does not warrant or represent that the use of the Site or its associated information, data, statistics and materials will be correct, accurate, timely or otherwise reliable. You specifically agree that TheSwami.com and its wholly owned subsidiaries shall not be responsible for unauthorized access to or alteration of the Customer Data or data from Your Website.
THE SITE OR ITS ASSOCIATED INFORMATION, DATA, STATISTICS AND MATERIALS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY THESWAMI.COM AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SITE OR ITS ASSOCIATED INFORMATION, DATA, STATISTICS AND MATERIALS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. THESWAMI.COM DOES NOT WARRANT THAT THE SITE OR ITS ASSOCIATED INFORMATION, DATA, STATISTICS AND MATERIALS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SITE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY . THESWAMI.COM AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SITE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF THESWAMI.COM AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
TheSwami.com (and its wholly owned subsidiaries') total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed U.S. $100.
12. SITE AVAILABILITY . TheSwami.com does not guarantee the Site will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond TheSwami.com (or its wholly owned subsidiaries') control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where TheSwami.com (or its wholly owned subsidiaries) or the Site servers are located or co-located.
13. PROPRIETARY RIGHTS NOTICE . The Site and its associated information, data, statistics and materials are, and shall remain, the property of TheSwami.com (and its wholly owned subsidiaries). All rights in and to the Site and its associated information, data, statistics and materials not expressly granted to You in this Agreement are hereby expressly reserved and retained by TheSwami.com and its licensors without restriction, including, without limitation, TheSwami.com (and its wholly owned subsidiaries') right to sole ownership of the Site and its associated information, data, statistics and materials. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Site outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile software, code or processing algorithms available at or through the Site or otherwise attempt to discover any source code or trade secrets related to the Site or its associated information, data, statistics and materials; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Site or its associated information, data, statistics and materials for any purpose without the express written consent of TheSwami.com (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with TheSwami.com (or its wholly owned subsidiaries) other than in the name of TheSwami.com (or its wholly owned subsidiaries, as the case may be); or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included at the Site or in its associated information, data, statistics and materials.
14. TERM and TERMINATION . Either party to the Agreement may terminate it at any time and for any reason.
Upon any termination or expiration of this Agreement, TheSwami.com will cease providing You access to the Site or its associated information, data, statistics and materials, and You will delete all copies of the Site or its associated information, data, statistics and materials then in your possession within FIVE (5) business days. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical usage data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.
15. MODIFICATIONS TO TERMS OF SITE AND OTHER POLICIES . TheSwami.com reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Site, at any time, by posting the new agreement to the site located at TheSwami.com or TheSwami.net (or such other URL as TheSwami.com may provide). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of TheSwami.com, (ii) You accept updated terms online, or (iii) You continue to access or use the Site after TheSwami.com has posted updates to the Agreement or to any policy governing the Site.
16. MISCELLANEOUS; APPLICABLE LAW AND VENUE . TheSwami.com shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Pennsylvania law, rules, and regulations, Pennsylvania law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Centre County, Pennsylvania. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Site and its associated information, data, statistics and materials may be controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to TheSwami.com must be sent to: email@example.com, with a copy to 208 West Hamilton Ave. Box 333, State College, PA 16801, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without TheSwami.com prior written consent, and any such attempt is void. The relationship between TheSwami.com and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 13, 14, and 16.