USE OF ELECTRONIC PLATFORM
The Electronic Platform is the property of Swaggerty’s and/or its licensors, vendors, and contractors. You are granted a non-exclusive, revocable, and non-transferable limited license to view and use the Electronic Platform, provided that (a) you use it only for informational, personal, non-commercial purposes; and (b) you do not remove or obscure any copyright notice or other notices found within the Electronic Platform. You do not have the right to sublicense your rights under this Agreement. Without the express written consent of Swaggerty’s, you are not allowed to (i) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, products, or services obtained from the Electronic Platform; (ii) reproduce any part of the Electronic Platform or mirror any material contained within the Electronic Platform on any other server or application; or (iii) link to or from the Electronic Platform. Swaggerty’s reserves the right, in its sole discretion, to deny access to the Electronic Platform or to take any other appropriate action if it believes that your conduct is in violation of applicable law or this Agreement, or for any other reason.
In order to access some of the features in the Electronic Platform, you may have to create an account. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs with respect to any account you create, and you must keep any associated password secure. If you suspect a breach of security or unauthorized access to any account, you must notify Swaggerty’s. Although Swaggerty’s will not be liable for any loss caused by unauthorized access, you may be liable for losses incurred by Swaggerty’s or others with respect to such unauthorized use.
As consideration for your right to access and use the Electronic Platform, you agree that Swaggerty’s has the right to utilize the processor, bandwidth, and storage hardware on any computer, smartphone, or other relevant device that you use to access or use the Electronic Platform for the purpose of facilitating the communication and transmission of content and other data or features to or from you and/or Swaggerty and/or other users of the Electronic Platform. As additional consideration, you also agree to release and indemnify Swaggerty’s from and against any claims, actions, demands, costs, damages, liabilities, and settlements related in any way to Swaggerty’s utilization of such resources.
You agree not to use or launch any automated systems, including, but not limited to, “robots,” “spiders,” “offline readers,” etc., that access any part of the Electronic Platform in a manner that sends more request messages to Swaggerty’s servers in a given period than a human can reasonably produce in the same period using online web browsing. Notwithstanding the foregoing, Swaggerty’s grants the operators of public search engines permission to use spiders to copy materials from its Website for the sole purpose of creating publicly searchable indices of the materials, but not caches or archives of such materials.
PRODUCT AND SERVICE REPRESENTATION
The Electronic Platform may contain general information related to Swaggerty’s products, product locators, coupons and special offers, information related to Swaggerty’s loyalty programs, and links to and information from the Website and Swaggerty’s social media profiles. Swaggerty’s makes no warranties, representations, or guarantees that such information is accurate or that any service or product referenced in the material found in the Electronic Platform will be available at a specific time or at a certain location. All coupons and discounts are void where prohibited by law.
LINKS TO OTHER WEBSITES OR APPLICATIONS
As an express condition of your use of the Electronic Platform, you explicitly agree not to use the Electronic Platform for any purpose that is unlawful or prohibited by this Agreement. Also, you agree not to use the Electronic Platform in any way that could damage, disable, overburden, or impair the Electronic Platform or interfere with others’ use of it. Further, you agree not to attempt to gain access to Swaggerty’s computer systems or networks connected to Swaggerty’s through fraud, hacking, password mining, or any other means. Finally, you agree not to use the Electronic Platform to attempt to gain a competitive advantage over Swaggerty’s.
SWAGGERTY’S, SWAGGERTY’S FARM, and the Swaggerty’s logo are all marks owned by Swaggerty’s and may not be used without Swaggerty’s express written permission. There are other trademarks, service marks, trade names, and trade dress on the Electronic Platform that may be owned by Swaggerty’s or may be owned by third parties and used by Swaggerty’s with permission. You may not use any such trademarks, service marks, trade names, or trade dress without the express written permission of their owner.
All software and content included on the Electronic Platform, including all text, graphics, logos, and images, is owned by Swaggerty’s or third parties and is protected by United States and international copyright laws. You may view and use the content of the Electronic Platform in connection with your use of the Electronic Platform. Any other use, including the reproduction, copying, distribution, transmission, republication, display, or creation of works derivative of the content of the Electronic Platform is strictly prohibited, except as otherwise specifically set forth herein. You do not acquire ownership rights to any content or other materials viewed on or through the Electronic Platform. The posting of information or materials on the Electronic Platform does not constitute a waiver of any rights therein. You may not copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract any source code of the Electronic Platform or any part thereof, unless expressly permitted or required by law, or unless Swaggerty’s has granted you written permission to do so.
THE ELECTRONIC PLATFORM IS PROVIDED ON AN “AS IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS. USERS OF THE ELECTRONIC PLATFORM ASSUME ALL RESPONSIBILITY AND RISK FOR SUCH USE. SWAGGERTY’S MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE ELECTRONIC PLATFORM OR THE SECURITY, CONTENT, PRODUCTS, OR SERVICES INCLUDED ON THE ELECTRONIC PLATFORM, THAT THE ELECTRONIC PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE INFORMATION PROVIDED ON THE ELECTRONIC PLATFORM IS ACCURATE OR RELIABLE. TO THE FULLEST EXTENT PERMITTED BY LAW, SWAGGERTY’S AND ITS OFFERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS. SWAGGERTY’S MAKES NO WARRANTIES THAT THE USE OF THE ELECTRONIC PLATFORM WILL BE UNINTERRUPTED, AVAILABLE AT ALL TIMES AND LOCATIONS, SECURE, FREE FROM ERRORS, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
IN ADDITION, SWAGGERTY’S DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCT OR SERVICE ADVERTISED OR OFFERED IN CONNECTION WITH SWAGGERTY’S PRODUCTS ON OR THROUGH THE ELECTRONIC PLATFORM OR ANY HYPERLINKED WEBSITE FOUND ON THE ELECTRONIC PLATFORM OR FEATURED IN ANY BANNER OR ADVERTISEMENT WITHIN THE ELECTRONIC PLATFORM. CONSEQUENTLY, SWAGGERTY’S WILL NOT BE LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THE THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ELECTRONIC PLATFORM IS DONE AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD SWAGGERTY’S AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS HARMLESS FROM AND AGAINST ANY CLAIMS, ACTIONS, DEMANDS, COSTS, DAMAGES, LIABILITIES, AND SETTLEMENTS, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES, RESULTING FROM OR ALLEGED TO RESULT FROM YOUR VIOLATION OF THIS AGREEMENT, YOUR USE OF THE ELECTRONIC PLATFORM, OR YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY USING THE ELECTRONIC PLATFORM.
LIMITATION OF LIABILITY
SWAGGERTY’S WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, ARISING FROM THE USE OF THE ELECTRONIC PLATFORM OR SERVICES AVAILABLE ON THE ELECTRONIC PLATFORM, THE UNAVAILABILITY OF THE ELECTRONIC PLATFORM, DAMAGE TO YOUR COMPUTER OR COMPUTER SYSTEM, OR ANY LOSS OF DATA OR BUSINESS INTERRUPTION RESULTING FROM SUCH USE, EVEN IF SWAGGERTY’S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SWAGGERTY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE ELECTRONIC PLATFORM OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE ELECTRONIC PLATFORM AND ANY SERVICES OR PROGRAMS PROVIDED THROUGH THE ELECTRONIC PLATFORM. YOU AND SWAGGERTY’S 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 PUTATIVE CLASS OR REPRESENTATIVE PROCEEDING. EACH PARTY FURTHER WAIVES ALL RIGHTS TO HAVE DAMAGES MULTIPLIED OR INCREASED.
THE LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SWAGGERTY’S. THE ELECTRONIC PLATFORM WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
By using the App or otherwise providing your cell phone number to Swaggerty’s, you agree that Swaggerty’s may communicate with you via SMS, MMS, or via push notifications. By electing to subscribe to marketing messages, you expressly consent to receiving SMS messages using automated technology. By providing your cell phone number to Swaggerty’s, you consent to receive transactional, operational, or informational text messages at that phone number. You can unsubscribe at any time by sending a message saying “STOP.” After sending such a message, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive messages for a short period while Swaggerty’s processes your request. If you opt-out of one Swaggerty’s messaging programs, you may remain opted in to other messaging programs unless you opt-out of those programs separately. Consent to receive marketing text messages is not required as a condition of purchasing any goods or services. Swaggerty’s may not be able to deliver messages to all mobile carriers.
Message and data rates may apply. Your carrier’s standard messaging rates apply to your entry or submission message, Swaggerty’s confirmation, and all subsequent SMS or MMS correspondence; and standard data rates apply to all data sent or received through the use of the App. All charges are billed by and payable to your mobile service provider. You represent that you are 18 years or older and the owner or authorized user of the wireless device you use to subscribe for the service, and that you are authorized to approve the applicable charges.
Swaggerty’s may suspend or terminate your receipt of Swaggerty’s text messages at any time. Swaggerty’s reserves the right to modify or discontinue, temporarily or permanently, all or any part of Swaggerty’s text message services, with or without notice.
You expressly agree that exclusive jurisdiction of any dispute with Swaggerty’s or in any way relating to your use of the Electronic Platform shall be in the federal or state courts serving Sevier County, Tennessee; and you further agree and expressly consent to the exercise of personal jurisdiction in such courts in connection with any such dispute. This Agreement shall be governed by and construed according to the laws of the State of Tennessee, without regard for its conflict of laws principles. BY YOUR USE OF THE ELECTRONIC PLATFORM, YOU HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY.
You may not assign your rights or obligations under this Agreement. Swaggerty’s may assign this Agreement, the Electronic Platform, or any part thereof to any third party in Swaggerty’s sole discretion.
This Agreement constitutes the entire agreement between you and Swaggerty’s and supersedes all prior or contemporaneous agreements, representations, warranties, or understandings with respect to the Electronic Platform. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.