SWIPEBY Terms of Use and End User License Agreement

Effective Date: 15th August, 2017

Last Updated Date: 19th March, 2019

These Terms set out the terms and conditions on which the SWIPEBY App is available for you to download and use.  The SWIPEBY App is licensed, not sold, to you, and you may use IT only as set forth in these Terms. Please review them carefully. When you click “Agree,” you are entering into a binding legal contact. By accessing and/or using the SWIPEBY App, you agree that you have read, understood and agree to be bound by these Terms. If you do not wish to agree to these Terms, do not install or use the app. If you have any questions or concerns about these Terms, you can send them by email to hello@swipe.by.  

1.       Parties

This agreement is between Neighbor, INC (referred to in these Terms as “Neighbor,” “we,” or “us”) as the owner and sponsor of the SWIPEBY App, and you as the user of the SWIPEBY App.

2.       License

The SWIPEBY App is designed to allow you to browse menu items from participating restaurants, place orders for pick up by you at the restaurant, and pay for your orders, all from your mobile phone or other internet-connected device. The SWIPEBY App is licensed, not sold, to you for use only under these Terms. We reserve all rights not expressly granted to you.  Subject to your complete and ongoing compliance with these Terms, we hereby grant you a personal, limited, revocable, non-transferable license to download, install and use the SWIPEBY App.  These Terms create a legally binding contract between you and us. If you do not agree to these Terms, then you may not use the SWIPEBY App.

We have the right to terminate your license at any time upon notice to you, and we may do so for any reason in our sole judgment. We will provide you with electronic notice of termination at your registered email address, and termination will become effective upon delivery of that notice.

You also have the right to terminate your license at any time, for any reason in your sole judgment. You may do so by uninstalling the SWIPEBY App from your mobile phone or other internet-connected device. Termination is effective as soon as the uninstall completes.

In the event of termination by either of us,  you will remain obligated for any transactions you have entered into using the app prior to termination.

3.        Changes

We may change these Terms at any time, for any reason at our sole discretion and without notice.  The current terms will always be available through the SWIPEBY App, and we will send you notice of any material changes at your registered email address.  If you continue to use the SWIPEBY App after the effective date of a change to the Terms, that means you have accepted and agree to the changed terms.  If you object to any of the changes, then your sole recourse is to stop using the SWIPEBY App. 

We may also change, suspend or discontinue any aspect of the SWIPEBY App or any of its features, functions or content at any time, without notifying you or getting your approval.  We hope you’ll like any changes we make, but even if you’re disappointed, please accept it gracefully.  Change is part of life.

4.       Use By Minors

THE SWIPEBY APP IS ONLY FOR PEOPLE AGE 13 OR OLDER. You are not authorized to use it unless you are at least age 13. If you are under age 18, you must get your parent or guardian to look at and agree to these Terms. 

If you are a parent or guardian and you allow your child to use the SWIPEBY App, you agree that you and your child will comply with these Terms, and you are legally responsible for any purchases by your child through the app or any other conduct of your child with respect to it.  

5.       Privacy Policy

We respect your privacy and share your concern about its protection.  The Privacy Policy is a part of these Terms and is incorporated in these Terms by reference.  Please review the policy to make sure you understand how we may collect, use and protect information that we learn about you as a result of what you do on the SWIPEBY App.  By agreeing to these Terms, you also agree to the Privacy Policy.

6.       Mobile Services

The services provided by the SWIPEBY App will be accessible via a mobile phone, tablet, or other wireless device (collectively, “Mobile Services”).  Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services.  In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices.  Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.  Nevertheless, all use of the SWIPEBY App and the related Mobile Services must be in accordance with these Terms. The SWIPEBY App is based in the United States, and may not be used in or from any other country.

7.       Registration

You must register an account with us through the SWIPEBY App. When you register with us and each time you access the SWIPEBY App, you will be providing various information to us about yourself.  If you want to make purchases through the SWIPEBY App, you will also need to provide us with your credit or debit card information. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete. You agree that we may use any information that we obtain about you, including any information provided by you in registering and using the app, in accordance with our Privacy Policy.

8.       Account Security

Please keep control of your login, password and other account information, and of any mobile device on which you have the SWIPEBY App installed, and don’t give them to anyone else.  If you let anyone else use your device to access the SWIPEBY App or use your account information to log in as you from another device, then you are responsible for any of that person’s actions under your login/password and any harm that may result.   If you think someone may have stolen your login or otherwise hacked your account, let us know right away by contacting us a hello@swipe.by.

9.       Intellectual Property

We own all trademarks, service marks, trade dress, logos, copyrights, design rights, trade secrets, rights to databases and compilations, and other intellectual property rights in and to the SWIPEBY App, including but not limited to the SWIPEBY word mark and logo and the graphical user interface (collectively the “SWIPEBY IP”). Other product and service names accessed through the SWIPEBY App, including names, logos and menus of participating restaurants, are trademarks, trade names, or service marks owned by third parties.  Your license to use the SWIPEBY App does not include any right to use any of the SWIPEBY IP or any third party’s trademarks, trade names, or service marks in any way or for any purpose other than in the course of using the SWIPEBY App. You agree not to copy, download, distribute, make derivate works, or make any commercial use of the Neighbor IP. You also agree not to attempt to hack, reverse engineer, decompile or disassemble the SWIPEBY App software or otherwise attempt to change its functionality or derive its source code, except where expressly permitted by law.

10.   Placing Orders

The SWIPEBY App allows you to view offerings from participating restaurants. The restaurant offering each item is solely responsible for the accuracy of all listed information, including restaurant name, location, description, average meal preparation time, and images, descriptions, and pricing for each menu item offered.  When you place an order for an item, you are entering into an agreement with the restaurant that offered that item, and the restaurant is solely responsible for fulfillment of that order. All issues of food quality and suitability, timeliness of preparation, price, conformity to the listing, and any other dissatisfaction with the food or service provided are the responsibility of the listing restaurant. You agree that any such issues will be addressed directly between you and the restaurant, and that we will have no responsibility for them.

The fact that items are displayed to you in the SWIPEBY App is not a guarantee that they will available to order.  If upon attempting to place an order you receive a message such as “Store Offline,” that means the participating restaurant is unable to fill an order at that time.  Please try the selection at a different time, or make another selection from the SWIPEBY App.

Preparation times listed in the SWIPEBY App are average meal preparation times provided by the listing restaurant, and do not constitute a representation that your order will be ready within that time or by any specific time. If you wish to know when your specific order is likely to be ready given the time if day, order volume, staffing levels, and other factors, you should contact the restaurant directly. There is a maximum limit of fifty (50) food items for any one order.

You agree to pick up your order in timely fashion. Orders not picked up within three hours of the time of placement may be disposed of by the participating restaurant, and payment will not be refunded.

11.   Payment Processing

In order to make purchases using the SWIPEBY App, you will need to provide credit or debit card information. This information goes directly to our third party payment processor, and is used to process your payment for orders you place. By submitting this information through the SWIPEBY App, you represent that it is correct and complete, that you are an authorized user of the card account, and that you will pay the charges according to the terms of your agreement with the card issuer.    

12.   Feedback

We welcome your feedback, comments and suggestions.  If you choose to contribute by sending us, our employees or our partners any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, offerings, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided.  Accordingly, by sending Feedback to us, you agree that: 

·        We have no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;

·        Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and

·        You irrevocably grant us perpetual and unlimited permission to use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.

13.   Limitation of Warranties and Remedies

THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:

The SWIPEBY App is provided to you “as is.”  We make no promises that the SWIPEBY App is accurate, complete, reliable, current, secure or error-free; that it will operate or be accessible without interruption; or that the SWIPEBY App will be free from viruses or other harmful components.  We also do not verify, endorse or undertake to exert editorial control over anything posted by participating restaurants or other third parties.  It is your responsibility to review the information on the SWIPEBY App and determine its completeness, effectiveness, accuracy and suitability for your use.  You use the SWIPEBY App at your own risk.

YOU ACKNOWLEDGE AND AGREE THAT: (A) THE SWIPEBY APP AND OUR CONTENT IS PROVIDED “AS IS” AND YOUR USE OF AND/OR RELIANCE ON THE SWIPEBY APP AND/OR ANY OF ITS CONTENT AND/OR DATA ARE SOLELY AT YOUR OWN RISK; (B) YOUR SOLE REMEDY AGAINST US FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SWIPEBY APP IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE SWIPEBY APP; AND (C) WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.

IN NO EVENT WILL WE BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL, INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, AND EVEN IF WE WERE ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING TO USE OF, ACCESS TO, RELIANCE UPON, CONTENT OF, SECURITY OF, OR INABILITY TO USE THE SWIPEBY APP OR ANY PART OF IT.  

SOME STATES DO NOT ALLOW DISCLAIMER OF WARRANTIES OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  IN ANY CASE, OUR MAXIMUM LIABILITY FOR ANY CLAIM YOU MAY HAVE AGAINST US ARISING OUT OF OR IN CONNECTION WITH THE SWIPEBY APP OR USE THEREOF IS U.S. $100 OR THE MINIMUM PERMITTED BY LAW.

14.   Indemnification by You

To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless Neighbor and its officers, owners, employees and agents, from and against all claims, actions, liabilities, damages and expenses (including court costs, legal fees, and amounts paid in settlement) by any third party arising out of or relating to: (A) your use of the Neighborz App, including but not limited to your placement of orders and the processing of payment for your orders, and/or (B) any actual or alleged violation of these Terms by you.  You will cooperate as fully as reasonably required in the defense of any such claim or action; however, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you (in which case, you agree to cooperate with our defense). You are solely responsible and liable for: (i) any breach of your representations, warranties, covenants or obligations under these Terms and for the consequences of such breach, including any resulting loss or damage incurred by us or third parties; and (ii) all activities that occur under your SWIPEBY App registration or account.

15.   Governing Law

When you accept these Terms, you and we are entering into a binding contract.  That contract and our relationship with one another arising from your use of the SWIPEBY App will be governed by the laws of the State of North Carolina applicable to contracts entered into and performed exclusively in that State.

16.   Notice and Procedure for Making Claims of Infringement

We respect the intellectual property rights of others. Accordingly, we have a policy of removing user content that violates copyright law, suspending access to the SWIPEBY App (or any portion thereof) by any user who uses the SWIPEBY App in violation of copyright law, and/or terminating in appropriate circumstances the account of any user who uses the SWIPEBY App in violation of copyright law. These policies may also apply to other forms of infringement.  If you believe a user of the SWIPEBY App, including but not limited to a listing restaurant, is infringing your copyright, trademark or other intellectual property right, please provide written notice to our agent.  Pursuant to the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2), we have designated Enns & Archer LLP to the U.S. Copyright Office as the agent to receive notifications of claimed infringement relating to the SWIPEBY App (the “Designated Agent”). All such notifications relating to the SWIPEBY App must be a written communication and must include the following information:

·        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 work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.

·        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 us to locate the material.

·        Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and/or electronic mail address.

·        A statement that the complaining party has 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.

·        A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.

Claims of infringement which include the above required information must be submitted to the Designated Agent as follows:

Name: Enns & Archer LLP

Email address: renns@ennsandarcher.com

U.S. Mail address: 939 Burke Street

Winston-Salem, NC 27101
 

Upon receiving a proper notification of copyright infringement as described above, we will remove or disable access to the allegedly-infringing material and promptly notify the alleged infringer of your claim.  We also will advise the alleged infringer of the counter-notification procedure, as described in the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512.  If we receive a valid counter-notification, we will restore the removed or disabled material after ten (10), but no later than fourteen (14), business days from the date on which we receive the counter-notification, unless our Designated Agent first receives notice from you, as the party filing the original notification of copyright infringement, informing us that you have filed a court action to restrain infringement of the material in question.

Repeat Infringer Policy:  Our intellectual property policy is to (A) remove or disable access to material that we believe in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the SWIPEBY App; and (B) remove any material uploaded to the SWIPEBY App by “repeat infringers.”  We consider a “repeat infringer” to be any user that has uploaded material to or through the SWIPEBY App and for whom we have received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such material.  We have discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon our own determination. 

17.               Notifications.  You agree to transact with us electronically. Your affirmative act of registering, using or logging into the SWIPEBY App constitutes your acceptance signature to these Terms. At our discretion, we may provide notices to you electronically via e-mail to the email address you have provided to us. The delivery of any notice is effective when sent or posted by us, regardless of whether you read the notice or actually receive delivery. You can withdraw your consent to receive notices electronically by discontinuing your use of the SWIPEBY App.

18.   Term and Termination

As between you and us, the term of these Terms commences as of your first use of the SWIPEBY App and continues until the termination of the Terms by either you or us.  Any rights and obligations created by these Terms and which by necessary implication continue after expiration or termination, including any provisions relating to ownership of intellectual or other property, representations, warranties, limitations of liability, disclaimers, indemnification, dispute resolution, governing law, or any prohibitions or restrictions respecting any access to, use of, or other activities concerning the SWIPEBY App, will survive any termination or cancellation of these Terms, the SWIPEBY App or your registration.  If any portion of any term in these Terms is declared unlawful, void or for any reason unenforceable, all other terms will remain in effect as reflected in these Terms.  

19.   Other provisions

The waiver of any provision of the Agreement shall not be considered a waiver of any other provision or of our right to require strict observance of each of the terms, and our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.  You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of these Terms or your use of SWIPEBY App.  You agree that we may assign or sublicense any of our rights, and/or transfer, subcontract or delegate any of our obligations, under these Terms.  Your agreement to these Terms is personal to you and you may not transfer or assign them to any third party. These Terms constitute the entire and exclusive and final statement of the agreement between you and us with respect to the subject matter hereof, and govern your use of the SWIPEBY App, superseding any prior agreements or statements between you and us with respect to the subject matter hereof.

NOTICE REGARDING APPLE.  You acknowledge that these Terms are between you and us only, not with Apple, and Apple is not responsible for the SWIPEBY App or the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the SWIPEBY App.  In the event of any failure of the SWIPEBY App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant SWIPEBY App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the SWIPEBY App.  Apple is not responsible for addressing any claims by you or any third party relating to the SWIPEBY App or your possession and/or use of the SWIPEBY App, including, but not limited to:  (A) product liability claims; (B) any claim that the SWIPEBY App fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation.  Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the SWIPEBY App or your possession and use of the App infringes that third party’s intellectual property rights.  You agree to comply with any applicable third party terms, when using the SWIPEBY App.  Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.  You hereby 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.  If we provide a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. 

NOTICE REGARDING GOOGLE.  You acknowledge that these Terms are between you and us only, not with Google, and Google is not responsible for the SWIPEBY App or the content thereof. Google has no obligation whatsoever to furnish any maintenance and support services with respect to the SWIPEBY App.  In the event of any failure of the SWIPEBY App to conform to any applicable warranty, then you may notify Google and Google will refund the purchase price for the relevant SWIPEBY App to you; and, to the maximum extent permitted by applicable law, Google has no other warranty obligation whatsoever with respect to the SWIPEBY App.  Google is not responsible for addressing any claims by you or any third party relating to the SWIPEBY App or your possession and/or use of the SWIPEBY App, including, but not limited to:  (A) product liability claims; (B) any claim that the SWIPEBY App fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation. Google is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the SWIPEBY App or your possession and use of the App infringes that third party’s intellectual property rights.  You agree to comply with any applicable third party terms, when using the SWIPEBY App. Google, and Google’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.  You hereby 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.  If we provide a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.