SwayMe - The Mobile Social Polling App

Terms of Use

Last Updated: January 17, 2018

ACCEPTING TERMS OF USE

By accessing or using the SwayMe website, the SwayMe service, or any applications (including mobile applications) made available by Binari, Inc. (collectively, "SwayMe" or the "Service"), however accessed, you agree to be bound by these terms of use ("Terms of Use" or "Agreement"). The Service is owned or controlled by Binari, Inc. ("Binari", "we" or "us"). This Agreement affects your legal rights and obligations. If you do not agree to be bound by all of this Agreement, do not access or use the Service.

WHO MAY USE SWAYME

You must be thirteen (13) years old or older to use SwayMe. No individual under the age of thirteen (13) may use SwayMe, provide any personal information to SwayMe, or otherwise submit personal information through SwayMe (including, for example, a name, e-mail address, or telephone number). You may only use SwayMe, if you can form a binding contract with Binari and are not legally prohibited from using SwayMe.

LICENSE TO USE SWAYME

Binari grants you a limited, non-exclusive license to access and use SwayMe for your own personal use and not for commercial purposes. This license is personal to you and may not be assigned or sublicensed to anyone else.

OBJECTIONABLE MATERIAL

You understand that by using the Services, you may encounter content that may be deemed offensive, indecent, or objectionable by some. Nevertheless, you agree to use the Service at your sole risk and that Binari shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.

OWNERSHIP

Binari owns and retains all proprietary rights in the Service, and in all content (excluding content uploaded by users, which is the subject of a license set forth below), trademarks, trade names, service marks and other intellectual property related thereto. You cannot reproduce, redistribute, sell, create derivative works, or disassemble SwayMe unless expressly permitted by Binari in writing. You may also not take any action to interfere with or damage SwayMe. All rights are reserved by Binari unless expressly granted in writing.

REGISTRATION AND SECURITY

As a condition to using the Service, you may be required to create an account (an "Account") and select a password. You agree to provide Binari with accurate, complete, and updated registration information.

You are also responsible for maintaining the confidentiality of your Account password and for the security of your Account, and you will notify Binari immediately of any actual or suspected loss, theft, or unauthorized use of your Account or Account password.

TERMS AND TERMINATION

1. This Agreement begins on the date you use SwayMe for the first time and continues until terminated in accordance with this Agreement.

2. We reserve the right to modify or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you. If Binari deletes your account for any reasons of misconduct, you may not re-register under a different name.

3. You can deactivate your SwayMe account by e-mailing Binari at support@swaymeapp.net with a request to deactivate your account.

4. There may be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

5. Binari reserves the right to remove any Content (defined below) from the Service for any reason, without prior notice. Content removed from the Service may continue to be stored by Binari, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order.

6. Binari will not be liable to you for any modification, suspension, or discontinuation of the Service, or the loss of any Content.

7. You acknowledge that the Internet may be subject to breaches of security and that the submission of content or other information may not be secure.

8. Upon termination, all licenses granted by Binari immediately terminate. In the event of account deletion for any reason, Content that you submitted may no longer be available and Binari is not be responsible for the loss of such Content. After your account is terminated, this Agreement will terminate except for (i) the paragraphs entitled: "Ownership" "Term and Termination" "Disclaimers and Limitation of Liability" "Licenses Granted by You" "Your Representations and Warranties" "Privacy Policy" "Indemnification and Limitation of Liability" "Arbitration" "Time Limitation on Claims" and the Section entitled "General Provisions.".

9. We reserve the right, in our sole discretion, to change these Terms of Use from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms of Use and any updated Terms of Use before using the Service. The updated Terms of Use will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. These Terms of Use will govern any disputes arising before the effective date of the updated Terms of Use.

10. We reserve the right to refuse access to the Service to anyone for any reason at any time.

11. We reserve the right to force forfeiture of any username for any reason.

12. We may, but have no obligation to, remove, edit, block, and/or monitor any Content or accounts containing Content that we determine in our sole discretion violates these Terms of Use.

13. You are solely responsible for your interaction with other users of the Service, whether online or offline. You agree that Binari is not responsible or liable for the conduct of any user. Binari reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users.

14. You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively and individually, "Content") that you submit, post or display on or via the Service.

15. You agree that you are responsible for all data charges you incur through use of the Service.

16. You must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way SwayMe operates.

17. You must not create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.

18. We prohibit crawling, scraping, caching or otherwise accessing any content on the Service via automated means (except as may be the result of standard search engine protocols or technologies used by a search engine with Binari's express consent).

CONTENT RESTRICTIONS

1. You are solely responsible for the Content that you publish or display (hereinafter, "post") on the Service. You will not post on the service, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or ill material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to Binari or to any other user. If information provided to Binari or another user, subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change. The following is a partial list of content you may not upload, post, or transmit (collectively, "submit") any Content that

a. is patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

b. harasses or advocates harassment of another person;

c. promotes information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

d. provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;

e. contains sexually explicit content;

f. provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;

g. promotes an illegal or unauthorized copy of another person's copyrighted work, such as provides pirated computer programs or links to them, provides information to circumvent manufacture-installed copy-protect devices, or provides pirated images, audio or video, or links to pirated images, audio or video files;

h. solicits passwords or personal identifying information for commercial or unlawful purposes from other users;

i. engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes;

j. infringes any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.).

2. Your use of the Service, including but not limited to the Content you post on the Service, must be in accordance with any and all applicable laws and regulations. You agree that we may access, preserve and disclose your account information and content if required to do so by law or if we believe that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Service in the future; or (v) protect the rights, property or personal safety of Binari or any other person.

3. You may not include in your user profile any telephone numbers, street addresses, URLs or email addresses.

PRIVACY POLICY

Your rights are set forth in our Privacy Policy https://www.swaymeapp.net/privacy which is made a part of these Terms of Use. You agree that by using the Service you consent to our Privacy Policy, including collection, use, and sharing (as set forth in the Privacy Policy) of such information by Binari.

LICENSES GRANTED BY YOU

You grant Binari and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, transferable, royalty-free license and right to host, store, use, adapt, edit, modify, copy, transmit, distribute, publicly perform, and display (through all media now known or hereafter created), and make derivative works from your content. In addition, you waive any so-called "moral rights" in your content. You further grant all users of SwayMe permission to view your content for their personal, non-commercial purposes. If you make suggestions to Binari on improving or adding new features to SwayMe, Binari shall have the right to use your suggestions without any compensation to you.

YOUR REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction; and (v) the Content complies with these Terms of Use and all applicable laws.

INDEMNIFICATION AND LIMITATION OF LIABILITY

You will indemnify, defend, and hold harmless Binari and its affiliates, directors, officers, employees, and agents, from and against all third-party actions that: (i) arise from your activities on SwayMe; (ii) assert a violation by you of any term of these Terms of Use; or (iii) assert that any Content you submitted on or through the Service violates any law or infringes any third party right, including any intellectual property or privacy right. Binari reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Binari in connection therewith.

The Service, our content, and member Content are all provided to you "as is" and "as available" without warranty of any kind, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement.

Binari shall not be liable for any damages, direct, indirect, incidental, consequential, special, or punitive, including, without limitation, loss of data, income, profit or goodwill, loss of or damage to property and claims of third parties arising out of your access to or use of the Service, our content, or any member Content, however caused, whether based on breach of contract, tort (including negligence), proprietary rights infringement, product liability or otherwise.

The foregoing shall apply even if we were advised of the possibility of such damages. If you become dissatisfied in any way with the app or site, your sole and exclusive remedy is to stop your use of the app and site.

You hereby waive any and all claims arising out of your use of the app or site. In the event that the jurisdiction you are in does not allow the disclaimer of implied warranties or the exclusion or limitation of certain types of damages, these provisions may not apply to you. If any portion of this limitation on liability is found to be invalid or unenforceable for any reason, then our aggregate liability shall not exceed one hundred dollars ($100).

ARBITRATION

Except if you opt-out or for disputes relating to: (1) your or Binari's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents); (2) violations of provisions 16 or 17 of the Terms and Termination above (the "Excluded Disputes"), you agree that all disputes between you and Binari (whether or not such dispute involves a third party) with regard to your relationship with Binari, including without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you, and Binari hereby expressly waive trial by jury. You may bring claims only on your own behalf. Neither you nor Binari will participate in a class action or class-wide arbitration for any claims covered by this Agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Binari is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Binari or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Use.

You may opt out of this agreement to arbitrate. If you do so, neither you nor Binari can require the other to participate in an arbitration proceeding. To opt out, you must notify Binari in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: 23 W 73^rd Street Suite 1011A, New York NY 10023. You must include your name and address of your residence, the email address you use for your SwayMe account, and a clear statement that you want to opt out of this arbitration agreement.

If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Binari.

TIME LIMITATION ON CLAIMS

You agree that any claim you may have arising out of or related to your relationship with Binari must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

THIRD PARTY COPYRIGHTS AND OTHER RIGHTS; COPYRIGHT POLICY

Binari respects the intellectual property of others, and we ask our users to do the same. You are responsible for ensuring that the any Content you upload to SwayMe does not infringe any third party copyrights or other third party intellectual property rights.

Binari will promptly remove materials in accordance with the Digital Millennium Copyright Act ("DMCA") if properly notified that the materials infringe a third party's copyright. In addition, Binari may, in its sole discretion, terminate the accounts of repeat copyright infringers or repeat infringers of any other third party intellectual property rights

REPORTING COPYRIGHT AND OTHER IP VIOLATIONS

If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement or that any of your other intellectual property rights have been infringed, please provide us with the following information:

(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or other intellectual property rights;

(ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;

(iii) a description of where the material that you claim is infringing is located on the Service (and such description must be reasonably sufficient to enable us to find the alleged infringing material, such as a URL);

(iv) your address, telephone number and email address;

(v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner/intellectual property owner, its agent, or the law; and,

(vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner/intellectual property owner or authorized to act on behalf of the copyright owner/intellectual property owner.

Notice of claims of copyright infringement/intellectual property infringement should be provided to our agent at support@swaymeapp.net or the following address: 23 W 73^rd Street Suite 1011A, New York, NY 10023.

GENERAL PROVISIONS

GOVERNING LAW

This Agreement shall be governed by the laws of the State of New York in the United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply. For any action at law or in equity relating to the arbitration provision of these Terms of Use, the Excluded Disputes or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with Binari exclusively in a state or federal court located in New York, New York and to submit to the personal jurisdiction of the courts located in New York County for the purpose of litigating all such disputes.

DISPUTES

Any action arising out of or relating to this Agreement or your use of SwayMe must be commenced in the state or federal courts located in New York County, New York, United States of America (and you consent to the jurisdiction of those courts).

INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES

Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by Binari in exercising any right hereunder will waive any further exercise of that right. Binari's rights and remedies hereunder are cumulative and not exclusive.

SUCCESSORS; ASSIGNMENT; NO THIRD PARTY BENEFICIARIES

This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without Binari's prior written consent. No third party shall have any rights hereunder.

NOTICES

You consent to receive all communications including notices, agreements, disclosures, or other information from Binari electronically, which may include email, SMS, MMS, text message or postings on or through the Service. Support-related inquiries or notices of a legal nature (such as a subpoena) may be sent to us at support@swaymeapp.net or the following address: 23 W 73^rd Street Suite 1011A, New York, NY 10023.

MODIFICATION AND ENTIRE AGREEMENT

Binari reserves the right to modify this Agreement by (1) posting a revised Terms of Use on and/or through SwayMe and (2) providing notice to you that this Agreement has changed, generally via email where practicable, and otherwise through SwayMe. Modifications will not apply retroactively. You are responsible for reviewing and becoming familiar with any modifications to these Terms of Use.

We may sometimes ask you to review and to explicitly agree to (or reject) a revised version of the Terms of Use. In such cases, modifications will be effective at the time of your agreement to the modified version of the Terms of Use. If you do not agree at that time, you are not permitted to use SwayMe.

This Agreement, together with the Privacy Policy, constitutes the entire understanding between Binari and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.

TERRITORIAL RESTRICTIONS

The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Binari to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that Binari provides.

Software related to or made available by the Service may be subject to United States export controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.