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Please read these Terms of Service (the “Terms”) fully because they govern your use of our website located at https://www.swhey.com (the “Site”), and our products and services available and accessible via our Site.
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the modified Terms because if you continue to use the Services after we’ve let you know that the Terms have been modified, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms then you may no longer use the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
You may use the Services only if you are 18 years or older and are not barred from using the Services under applicable law.
If you want to use certain features of the services, you’ll have to create an account (“Account”). You can do this via the Site or through your account with certain third-party social networking services such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option, we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
You may establish an Account on the Site. The enrollment requires you to (1) indicate agreement to these Terms, (2) provide contact information and identification details, and (3) submit any other form of authentication required as part of the enrollment process, in Swhey’s sole discretion. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You are responsible for maintaining the confidentiality of your account and password, and for restricting access to your account. You’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account or password, whether or not you know about them.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. If you provide us any Feedback, you agree that we may use, copy, modify, create derivative works of and otherwise exploit the Feedback for any purpose.
The amounts due and payable by you for any product that you purchase through the Services (including any applicable shipping charges and taxes) will be presented to you before you place your order. If you place an order for any products via the Services, you agree (a) that SWHEY may charge your credit card for verification, pre-authorization and payment purposes, and (b) to bear any additional charges that your bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order. We accept the following credit cards at this time: Visa, MasterCard, American Express, Discover, and JCB. We also accept PayPal. You’ll receive a confirmation email after we confirm the payment for your order and you will be charged once your order ships. Your order is not binding on SWHEY until accepted and confirmed by SWHEY. We reserve the right to limit the order quantity on any product, to elongate the delivery timeline for any reason after the order has been placed, and/or refuse to ship product to any customer for any reason. If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card charges unless you have made a reasonable attempt at resolving the matter directly with SWHEY. SWHEY reserves the right to not process or cancel your order in certain circumstances. This may occur, for example, when the product or service you wish to purchase is out of stock or has been mispriced, we suspect the request is fraudulent, or in other circumstances SWHEY deems appropriate in its sole discretion. SWHEY also reserves the right, in its sole discretion, to take steps to verify your identity to process your order. SWHEY will either not charge you or refund the charges for orders that we do not process or cancel.
Replacement of products and credits to your account for shipped merchandise claimed as not received are subject to our investigation, which may include postal-service notification. We will adjust your account at our discretion.
In the event that a refund is issued, it can only be issued to the original form of payment.
Risk of Loss
The risk of loss and title for items purchased by you pass from SWHEY to you on shipment from SWHEY's facility. All shipments are governed in accordance to SWHEY's standard shipping terms. For shipments to you in the United States, we will ship the products FOB, SWHEY's point of shipment.
Opened product qualifies for store credit only. Just return the box and the contents to us within 14 days. Opened products after 14 days cannot be returned to us.
Any unopened products can be returned to us within 30 days. Any returns after 30 days will not be refunded. The customer is responsible for paying for shipping.
Payment will be credited to your original method of payment and you will be notified by email when your refund has been processed.
Product & Service Availability
We are always striving to improve our products and the Services. Therefore, we may revise or discontinue products at any time without notice or any liability. Prices and promotions are subject to change without notice.
We do not warrant that information available via our Services is accurate, complete, reliable, current or error-free.
The Services may contain information regarding the availability of merchandise. This information can be used to estimate the likelihood that an item will be shipped immediately after you place your order. Unfortunately, SWHEY cannot guarantee that an item listed as “in stock” will actually ship right away, as inventory can change significantly from day-to-day. In rare cases, a product or service offering may be in stock when a customer places the order, and sold out by the time SWHEY attempts to process the order.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that users (including you) provide to be made available through the Services. Content includes without limitation User Content.
We do not claim any ownership rights in any Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, SWHEY and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
By making any User Content available through Services you hereby grant to SWHEY a non-exclusive, transferable, sub licensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other users.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by SWHEY on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain instances some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We’re not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Subject to your compliance with these Terms, SWHEY grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
We ask that you respect our community of users and our desire for such users to feel safe when using the Services, including any Content. Accordingly, you agree not to do any of the following:
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 person or entity; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Services, or any individual element within the Services, SWHEY's name, any SWHEY trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent;
Access, tamper with, or use non-public areas of the Services, SWHEY's computer systems, or the technical delivery systems of SWHEY’s providers;
Attempt to probe, scan, or test the vulnerability of any SWHEY system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by SWHEY or any of SWHEY's providers or any other third party (including another user) to protect the Services or Content;
Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by SWHEY or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a SWHEY trademark, logo, URL or product name without swhey’s express written consent;
Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
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;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Site or Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or our or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law or other legal requirements.
SWHEY respects copyright law and expects its users to do the same. It is our policy to terminate, in appropriate circumstances, account holders or users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
You may cancel your Account at any time by contacting our customer support via phone as specified on our website. SWHEY may terminate your account and refuse any and all current or future use of the SWHEY.com and other services or any portion thereof, at any time and without liability to you, (1) in order to comply with applicable Law, (2) if you provide any information that SWHEY determines, in its sole discretion, to be untrue, inaccurate, not current or incomplete (or if the information becomes untrue, inaccurate, not current or incomplete), (3) if SWHEY determines, in its sole discretion, that you are using your SWHEY account in a manner not permitted by these Terms, or (4) in other circumstances, as swhey deems appropriate in its sole discretion.
Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions. Upon any termination of the Services or your Account by you or us, you will continue to be obligated to pay all amounts owing under these Terms which are due and payable prior to such termination.
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless SWHEY and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.
Limitation of Liability
NEITHER SWHEY NOR ANY OTHER party involved in creating, producing, or delivering the services or content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the ServiceS or CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not SWHEY has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will SWHEY’S total liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE the Services or content EXCEED THE AMOUNTS YOU HAVE PAID TO SWHEY FOR USE OF THE SERVICES OR content OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SWHEY, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SWHEY AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of New Jersey and/or the State of Washington without regard to its conflict of laws provisions.
You and SWHEY 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 the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) 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 (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in Trenton, New Jersey and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and SWHEY 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 SWHEY 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.
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 athttps://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
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 http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents athttp://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of 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.
Unless you and SWHEY 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 the documents that you and SWHEY 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.
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 of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and 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 attorney's’ fees and expenses, to the extent provided under applicable law. SWHEY will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
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 $25,000, SWHEY 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)).
Notwithstanding the provisions of the “Modification” section above, if SWHEY changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of SWHEY’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 SWHEY 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).
These Terms constitute the entire and exclusive understanding and agreement between SWHEY and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between SWHEY and you regarding the Services and Content. If for any reason 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.
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. SWHEY may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given: (i) by us via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
SWHEY’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SWHEY. 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.