TERMS OF SERVICE

1. Acceptance

Welcome to ChitChat (http://joinchit.chat), owned and operated by Swipe Labs, Inc., a Delaware corporation (“ChitChat”). ChitChat provides a technology platform, software, processes and services that allow users to use the ChitChat application and/or website to communicate by SMS text messages with other users in both individual and private chat sessions (collectively the “Services”). By using the Services, you agree to comply with and be legally bound by these Terms of Service (“Terms”), whether or not you become a registered user of the Services. These Terms govern your access to and use of the Services and constitute a binding legal agreement between you and ChitChat.

In these Terms, “you” and “your” refer to the individual that uses the Services. “We”, “us”, or “our” refer to ChitChat. “Content” means SMS or text messages, as well as other present or future features such as video, photos, images, software, graphics, sounds, music, interactive features, data, and other materials. Please read carefully these Terms and our Privacy Policy, which may be found at http://joinchit.chat/privacy, and which is incorporated into these Terms by this reference. If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the Services.

THE SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH USERS MAY COMMUNICATE WITH OTHER INDIVIDUAL USERS OR GROUPS OF USERS. YOU UNDERSTAND AND AGREE THAT CHITCHAT IS NOT A PARTY TO ANY COMMUNICATION BETWEEN USERS, AND HAS NO CONTROL OVER THE CONDUCT OF USERS, AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH ANY USER CONTENT.

YOU AGREE THAT USING THE SERVICE MAY EXPOSE YOU TO CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, INVASIVE OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST CHITCHAT WITH RESPECT THERETO, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AGREE TO INDEMNIFY AND HOLD HARMLESS CHITCHAT, ITS OWNERS, OPERATORS, AFFILIATES, LICENSORS, AND LICENSEES TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USE OF THE SERVICE.

2. Modification

ChitChat reserves the right to modify or discontinue, temporarily or permanently, any aspect of the Services at any time and without prior notice. ChitChat may also modify these Terms at any time, but if we do so we will post the modification on the website or via the application and will provide you with reasonable notice prior to the changes taking effect. By continuing to access or use the Services after we have posted a modification or have provided you with notice of a modification of these Terms, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cancel your account and stop using the Services.

3. Eligibility; Digital Signature

The Services are intended solely for persons who are (i) 18 or older, or (ii) 13 and older if either (a) an emancipated minor, or (b) he/she possess legal parental or guardian consent. All users must be willing and able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service.

By registering for a User Account, or by clicking to accept these Terms, you are deemed to have executed these Terms electronically, effective on the date you register your Account, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your creating of a User Account constitutes an acknowledgement that you are able to electronically receive, download, and print these Terms, and any amendments.

4. User Account Registration

To access and use the Services, you must register an account (“User Account”). There are currently no fees associated with use of the Services. You agree to provide accurate, current and complete information during registration and to update such information to keep it accurate, current and complete. You agree that you will safeguard your password and that you are solely responsible for any activities or actions under your User Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your User Account. You are solely responsible for your Content and User Account. You may not have more than one active User Account per phone number.

As a User, you may invite other Users to connect with you and you may initiate chat sessions with one or more other Users. ChitChat’s role is solely to facilitate the availability of the Services and to provide support related thereto, and is not responsible for User Content, Users you connect with, or chat sessions you join. ChitChat does not verify Users, which is the sole responsibility of each User.

The Services allow you to invite friends to join ChitChat. When sending such invitations, ChitChat will be acting on your behalf to send your messages through the Service, but ChitChat is not the sender or owner of your message or Content. You are responsible for ensuring that you have all necessary permission to invite a friend to join ChitChat.

5. Ownership

The Services, ChitChat Content, and User Content are or may be protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Services and ChitChat Content, including all associated intellectual property rights, are the exclusive property of ChitChat, or its licensors, or third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

All trademarks, service marks, logos, trade names and any other proprietary designations of ChitChat used herein are trademarks or registered trademarks of ChitChat. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

6. License to Services, Content, and User Content

Subject to your compliance with these Terms, ChitChat grants you a limited, non-exclusive, revocable, non-transferable license to access the Services and view any User Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.

You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services or Content, except as expressly permitted by the Service as provided for in these Terms. No licenses or rights are granted to you by estoppel, implication or otherwise under any intellectual property rights owned or controlled by ChitChat or its licensors, except for the licenses and rights expressly granted in these Terms.

7. License Grant to User Content

The Services permit Users to post User Content as provided for by the Services, such as SMS messages. By making available any of your Content on or through the Services, you hereby grant to ChitChat a worldwide, non-exclusive, transferable, royalty-free license to store your Content as needed to provide the Services and share it as allowed by the Services. ChitChat does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your

8. User Representations and Warranties

By submitting the User registration form, you represent, warrant and agree to the following:

  • You are solely and fully liable for (i) all Content, conduct, postings and transmissions that are made under your user name and password; (ii) all invitations you send to Users or friends, (iii) all Users that you connect with through the Services, and (iv) all chat sessions you create.
  • You are the sole and exclusive owner of all Content that you make available through the Services.
  • You are solely responsible for compliance with any and all laws, rules, and regulations that may apply to your use of the Services and Content.
  • Neither your Content, nor your posting, uploading, publication, submission or transmittal of the Content or ChitChat’s use of the Content (or any portion thereof) on, through or by means of the Services, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
  • You accept and agree that ChitChat has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. You acknowledge that we may establish general practices and limits concerning use of the Services and may modify such practices and limits from time to time.
  • Your Content will not breach any agreements you have entered into with any third parties, and you agree that ChitChat has no responsibility for User Content, User Account information, or for any User’s compliance with any applicable laws, rules and regulations.

You further represent, warrant and agree that you will not:

  • violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, tax regulations.
  • impersonate any person or entity, including, but not limited to, a ChitChat employee, Administrator, or other User, or falsely state or otherwise misrepresent your affiliation with a person or entity.
  • use the Services to “stalk” or otherwise harass another.
  • infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights.
  • sublicense, resell, rent, lease, transfer or assign the Services or its use, or offer the Services on a time-share basis to any third party.
  • use manual or automated software, devices, scripts robots, other means or processes to access, “scrape”, “crawl” or “spider” any web pages or other services contained in the Services or Content.
  • use the Services for any commercial or other purposes that are not expressly permitted by these Terms.
  • copy, store or otherwise access any information contained on the Services or Content for purposes not expressly permitted by these Terms.
  • interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
  • use the Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others (without their permission), personal contact information, or credit, debit, calling card or account numbers.
  • use the Services in connection with the distribution of unsolicited commercial email ("spam") or advertisements.
  • use automated scripts to collect information or otherwise interact with the Services.
  • post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
  • systematically retrieve data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.
  • use, display, mirror or frame the Services, ChitChat’s name, any ChitChat trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ChitChat’s express written consent.
  • access, tamper with, or use non-public areas of the website or application, ChitChat’s computer systems, or the technical delivery systems of the Services or any third-party provider system.
  • attempt to probe, scan, or test the vulnerability of any ChitChat system or network or breach any security or authentication measures.
  • avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by ChitChat or any of ChitChat’s providers or any other third party (including another user) to protect the Services or Content.
  • forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information.
  • attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content.
  • use the Service in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems.
  • advocate, encourage, or assist any third party in doing any of the foregoing.

ChitChat may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms. You acknowledge that ChitChat has no obligation to monitor your access to or use of the Services or User Content or to review or edit any Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. ChitChat reserves the right, at any time and without prior notice, to remove or disable access to any Content that ChitChat, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.

9. Termination of Account or Access

ChitChat will terminate a User’s Account and/or access to the Service if, under appropriate circumstances, the User is determined to be a repeat infringer. ChitChat reserves the right to decide whether Content violates these Terms of Service (or Community Guidelines, if any). ChitChat may at any time, without prior notice and in its sole discretion, remove any Content and/or terminate a User's account for submitting Content in violation of these Terms of Service.

10. Links

The Services may contain links to third party Content, websites or resources. You acknowledge and agree that ChitChat is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by ChitChat of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.

11. Advertisements

ChitChat may include advertisements on its own behalf or paid advertisements on behalf of interested companies and/or individuals on the Services. By clicking on the advertisements, the User may be shifted to a Web site of the advertiser or receive other messages, information, or offers from the advertiser. Users acknowledge and agree that ChitChat is not liable for the privacy practices of advertisers or the content of their Web sites, information, messages or offers. Users are wholly liable for all communications with advertisers and for all transactions subsequently executed.

12. Links

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
  • Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

ChitChat's designated Copyright Agent to receive notifications of claimed infringement is ChitChat c/o Swipe Labs, Inc., email: chitchat.copyright@joinswipe.com, address: 451 Eureka Street, San Francisco, CA 94114. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.

Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:

  • Your physical or electronic signature;
  • Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
  • Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, ChitChat may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at ChitChat's sole discretion.

13. Warranty Disclaimers

THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES AND/OR CONTENT SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, CHITCHAT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE CONTENT, SERVICES AND YOUR USE THEREOF. WITHOUT LIMITING THE FOREGOING, CHITCHAT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

CHITCHAT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES OR CONTENT OR THAT OF ANY LINKED SITES, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICES OR CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES OR CONTENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES OR CONTENT, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES OR CONTENT BY ANY THIRD PARTY, (V) THAT THE SERVICES WILL MEET YOUR BUSINESS OR PROFESSIONAL NEEDS, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY SERVICE OR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. CHITCHAT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY ADVERTISING, AND CHITCHAT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY INTERACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

To the extent any disclaimer or limitation of liability in these Terms does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first registered as a member of ChitChat, and no warranties shall apply after such period.

14. Limitation of Liability

IN NO EVENT SHALL CHITCHAT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICES OR CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES OR CONTENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES OR CONTENT BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY SERVICES OR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CHITCHAT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU SPECIFICALLY ACKNOWLEDGE THAT CHITCHAT SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, INVASIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by Swipe Labs, Inc. from its facilities in the United States of America. ChitChat makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

15. Indemnity

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless ChitChat, its affiliate and parent corporation(s), officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Services or Content; (ii) your violation of any term of these Terms including all incorporated provisions; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation survives these Terms and your use of the Services. ChitChat shall have the right to control all defense and settlement activities.

16. Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without ChitChat’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. ChitChat may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

17. Notices

Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by ChitChat (i) via email to the email address on your account or (ii) by posting to the website or via the application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. You may provide notice to us by email at chitchat@joinswipe.com.

18. Controlling Law and Jurisdiction

You agree that (i) the Services shall be deemed solely based in California, and (ii) the Services shall be deemed a passive website that does not give rise to personal jurisdiction over ChitChat, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You and we agree to submit to the personal jurisdiction of a state or federal court located in San Francisco, California for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution Provision below.
YOU AND CHITCHAT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.

19. Severability

These Terms are intended to govern the agreement between ChitChat and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.

20. Dispute Resolution Provision

You and ChitChat agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services (collectively “Disputes”) will be resolved according to the provision of this section.

  1. Informal Resolution. We will first try to resolve any Dispute informally. Accordingly, neither of us may start a formal proceeding (except for Disputes described in Section 10.4 below) for at least 30 days after one of us notifies the other of a Dispute in writing. Notice of the Dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You will send your notice by email to chitchat@joinswipe.com AND to 451 Eureka Street, San Francisco, CA 94114.

  2. Formal Resolution. If the Dispute is not resolved informally, we agree that it will be resolved by binding arbitration and not in courts of general jurisdiction; except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

    You acknowledge and agree that you and ChitChat are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and ChitChat otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void.

Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

  1. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
  2. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/ and a separate form for California residents at www.adr.org/.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
  3. Arbitration Location and Procedure. Unless you and ChitChat otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and ChitChat submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
  4. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
  5. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $10,000, ChitChat will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
  6. No Class Action. YOU AND CHITCHAT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we 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.
  7. Changes. Notwithstanding the provisions of the “Modification” section above, if ChitChat amends this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you will be notified in accordance with these Terms. You may reject any such change by sending us written notice (including by email to chitchat@joinswipe.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of ChitChat’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and ChitChat in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
  8. Enforceability. If the “No Class Action” section of this Dispute Resolution Provision is found to be unenforceable, or if the entire Dispute Resolution Provision is found to be unenforceable, then the entirety of the Dispute Resolution Provision will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described above will govern any action arising out of or related to these Terms.

21. International Users

ChitChat makes no claim that the Services or Content are appropriate for accessing or downloading outside the United States. If you access the Services from a location outside the United States, you do so at your own risk and are responsible for ensuring that doing so is in full compliance with all applicable laws, rules, regulations or decrees of your jurisdiction.

22. Export Control and Restricted Countries

You may not use, export, re-export, import, or transfer the application except as authorized by United States law, the laws of the jurisdiction in which you obtained the application, and any other applicable laws. In particular, but without limitation, the application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.

23. Feedback and Reporting Misconduct

We welcome and encourage you to provide feedback, comments and suggestions (collectively “Feedback”) for improvements to the Site, Application and Services. You may submit feedback by emailing us at chitchat.feedback@joinswipe.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of ChitChat and you hereby irrevocably assign to ChitChat all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At ChitChat’s request and expense, you will execute documents and take such further acts as ChitChat may reasonably request to assist ChitChat to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback. If you feel any User is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of fraud, or (iii) engages in any other disturbing conduct, you agree to immediately report such person to the appropriate authorities and to ChitChat.

24. General

The failure of ChitChat to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of ChitChat. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Certain areas of a website and/or application (and your access to or use of certain aspects of the Services or Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the website, application, Services, or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the website, application, Services, or Content.

25. Notice to California Residents.

If you are a California resident, under California Civil Code § 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

26. Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between ChitChat and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between ChitChat and you regarding the same.

Disclaimer: The original, legally binding version of this document is written in English. If it is translated into other languages by non-English-speaking users, there may be discrepancies between the English version and a translated version. If so, the English version supersedes the translated version.

© 2017 Swipe Labs, Inc. All rights reserved.