Date: June 26, 2012
DESCRIPTION OF SERVICES
Southwestern provides you with access to a variety of resources (the “Services”), including, without limitation, general information, message and/or communication facilities, downloads, forums, and calendars that are secured for use by Southwestern and its members only. The Services, including any updates, enhancements, new features, and/or the addition of any new web properties, are subject to these TOU.
ACCOUNTS AND PASSWORD SECURITY
You may have the option to create an account to participate in certain features of the Websites. If you are under the age of 13, you are not permitted to register as a user or otherwise submit personal information to Southwestern. If you create an account, you agree to provide, maintain and update true, accurate, current, and complete information about yourself in the registration process. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph.
You are responsible for maintaining the confidentiality of your member identification and password information, and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your member identification and password. You also agree to promptly notify Southwestern with any questions of unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to the Websites.
USE OF CONTENT
Use of the Southwestern content (videos, calendars, forums, quizzes, study tips, book indexes, etc.) is for informational and non-commercial or personal use only. You may not modify any content, or copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, post on any network, broadcast in any media or sell any information, including, without limitation, all text, files, designs, graphics, drawings, illustrations, images, photographs, video clips, music and sounds, and/or other materials and all trademarks, service marks and trade names used at the Websites and the selection and arrangements thereof (collectively, the “Website Content”) obtained from use of any of the Websites unless expressly permitted by Southwestern. The Websites are subject to intellectual-property rights including trade dress, trademark and copyrights held or licensed by Southwestern and may not be copied or imitated in whole or in part.
The Website Content may contain typographical errors or other errors or inaccuracies and may not be complete or current. Southwestern therefore reserves the right to correct any errors, inaccuracies or omissions and to change or update the Websites at any time without prior notice. Southwestern does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.
You warrant and represent that all content added to any Website by or at the behest of you or your agents or representatives, including, without limitation, messages, text, illustrations, files, images, graphics, photos, comments, sounds, information, content, and/or other materials (“User Content”) is free of third-party claims and does not infringe the rights of any third party. By adding or uploading User Content, you warrant and represent that you own or otherwise control all rights to the User Content. You agree to indemnify and hold Southwestern and its parents, subsidiaries, affiliates, members, officers, directors, employees, agents, representatives, sponsors and service providers harmless from any claim, demand, liability, loss, damages, or cause of action, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of your breach of the warranties and representations herein, your use of the Websites, the violation of these TOU, or infringement by you, or other user of the Websites using your computer, of any intellectual property or any other right of any person or entity. You will cooperate as fully as reasonably required in the defense of any claim. Southwestern reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any such matter without Southwestern’s written consent.
Southwestern is not responsible or liable for any User Content on the Websites. User Content does not express the views of Southwestern. Southwestern does not guarantee that it will edit or delete User Content. Southwestern has the right, but not the obligation, to monitor User Content. Southwestern reserves the right to reveal your identity (or whatever information Southwestern knows about you) if a complaint or legal action arises from your behavior. Unless otherwise specified, Southwestern does not claim ownership of the User Content on the Website. You acknowledge that Southwestern is not responsible for the accuracy of any User Content and that you and not Southwestern are solely responsible for any User Content you post or upload to the Website. Neither the User Content nor the Website Content is intended to, nor does it constitute legal, professional, medical or healthcare advice or diagnosis, and may not be used for such purposes. Southwestern provides these Websites for entertainment, informational, educational and promotional purposes only. You may not rely on any information and opinions expressed on the Website for any other purpose. It is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of the content on these Websites. Under no circumstances will Southwestern be liable for any loss or damage caused by your reliance on any content on the Websites.
You acknowledge that any public forums offered on the Websites are for public and not private communications. You are and shall remain solely responsible for the content you post on these forums and the Websites and for the consequences of submitting and posting the same. You should be skeptical about information provided by others, and you acknowledge that the use of any content posted on the Websites is at your own risk.
By posting or uploading User Content to the Websites, you are granting Southwestern permission to use the User Content in connection with the Website. By submitting User Content, you also grant Southwestern the right, but not the obligation, to use your biographical information, including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content.
Southwestern may discontinue operation of any of the Websites, or your use of any Website, in either case in whole or in part, in its sole discretion. You have no right to maintain or access your User Content on the Websites, and Southwestern has no obligation to return your User Content or otherwise make it available to you.
The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to reversion. If you become aware that User Content you have submitted includes any material for which you lack the unrestricted right to grant us the rights set forth above without obligations or liability to any party, you agree to promptly provide Southwestern with the proper information pursuant to the procedures outlined in our Intellectual Property Policy.
Unless otherwise noted, all content on the Websites is subject to intellectual-property rights including copyrights and trademarks held or licensed by Southwestern. Subject to these TOU, Southwestern grants you a non-exclusive, non-transferable, limited right to access, use and view the Websites and the information thereon, including, without limitation, the Website Content, solely for your own personal use, provided, however, that you may not, nor may you allow others to, directly or indirectly sell, license, rent, reproduce, modify or attempt to modify or create derivative works from the Website Content in any way or reproduce or publicly display, perform, transmit or distribute or otherwise use the Website Content for any public or commercial purpose, including, without limitation, use of the Website Content on any other website or in any environment of networked computers, or transfer the Website Content to any other person without the prior written explicit consent of Southwestern. Except as expressly provided herein, no license to use or reproduce the Website Content is given to you and all intellectual-property rights therein are expressly reserved. Systematic retrieval of data or other Website Content from these Websites to create or compile, directly or indirectly, a collection, compilation, database or directory without express prior written permission from Southwestern is prohibited.
For information on how to submit copyright or intellectual-property infringement claims or how to respond to such claims made against you, please see Southwestern’s Intellectual Property Policy.
LIMITS OF LIABILITY
IN NO EVENT SHALL SOUTHWESTERN OR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SPONSORS OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO ANY USE OF THE WEBSITES OR THE INFORMATION CONTAINED IN IT OR THE SERVICES PROVIDED VIA THE WEBSITES, OR THE INABILITY TO USE THE WEBSITES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF SOUTHWESTERN OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow for the limitation or exclusion of liability for incidental or consequential damages. In those jurisdictions, Southwestern’s liability is limited to the greatest extent permitted by law.
DISCLAIMER OF WARRANTIES
You expressly agree that use of the Websites is at your sole risk. The Websites are provided on an “as is” and “as available” basis. To the fullest extent permitted by applicable law, Southwestern makes no representations or warranties of any kind, express or implied, regarding the use or the results of any Website in terms of its correctness, accuracy, reliability, or otherwise. Southwestern makes no warranties or representations of any kind that the services provided by the Websites will be uninterrupted and/or error-free, and Southwestern shall have no liability for any interruptions, errors, computer viruses or other harmful components in the use of the Websites, although best efforts will be made to provide a high quality site that is useful and provides value to its members. SOUTHWESTERN DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE WEBSITES AND THE INFORMATION, PRODUCTS AND SERVICES PROVIDED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF NON-INFRINGEMENT. THIS INCLUDES LOSS OF DATA OR PROFIT ARISING OUT OF THE USE OR THE INABILITY TO USE THE CONTENT OF THESE WEBSITES. SOUTHWESTERN DOES NOT WARRANT THAT ANY CONTENT OR INFORMATION ACCESSED THROUGH THE WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITES OR THE SERVER THAT MAKES THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
RESTRICTIONS ON USE BY MINORS
If you are under 18, you may use the Websites only under the supervision of a parent or legal guardian. Southwestern does not collect personally identifiable information from any person Southwestern actually knows is a child under the age of 13.
MODIFICATIONS AND INTERRUPTION TO SERVICE
Southwestern will in good faith endeavor to provide uninterrupted service to the Websites, but you acknowledge and accept that Southwestern does not guarantee continuous, uninterrupted or secure access to the Websites, and operation of the Websites may be interfered with or adversely affected by numerous factors or circumstances outside of Southwestern’s control.
EXTERNAL LINKS, THIRD PARTIES AND THIRD-PARTY SITES
If there is a dispute between persons accessing any Website or between persons accessing a Website and any third party, you understand and agree that Southwestern is under no obligation to become involved. If there is such a dispute, you hereby release Southwestern and its parents, subsidiaries, affiliates, members, officers, directors, employees, agents, representatives, sponsors and service providers from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
UNLAWFUL OR PROHIBITED USES
You assume all knowledge of applicable law and are responsible for compliance with such laws. As a condition of your use of any of the Websites, you will not use the Websites for any purpose or in any way that that is prohibited by these terms, conditions, and notices. Southwestern reserves the right to refuse service and/or access to you for violation of this section or any of these TOU.
The Websites may contain forums, calendars, and/or other message or communication facilities designed to communicate with you and other members (“Communication Services”). You agree to use the Communication Services, including, without limitation, forums, only to view and post messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you are prohibited from using the Websites and/or Communication Services to:
- Advertise or offer to sell or buy any goods or services, or to solicit funds;
- Publish, post, transmit, distribute or disseminate any content, material or information that is inappropriate, profane, defamatory, obscene, vulgar, pornographic, lewd, filthy, excessively violent, indecent, harassing, threatening, abusive, invasive of privacy or publicity rights or otherwise objectionable;
- Publish, post or transmit any material or information, including images or photographs, that are made available through the Websites in any manner that infringes any copyright, trademark, patent, trade secret, moral right or other intellectual property, personal, contractual, proprietary or other third-party right of Southwestern or any third party;
- Publish, post or transmit material the licensed use by Southwestern would result in Southwestern having any obligation or liability to any party;
- Publish, post or transmit any material that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
- Interfere with any other party’s use and enjoyment of the Websites, e.g., by providing links or files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another;
- Restrict or inhibit any other user from using and enjoying the Communication Services or Websites or violate any code of conduct or other guidelines that may be applicable for any particular Service;
- Harvest or otherwise collect information about others, or post material that includes personal information such as messages that identify phone numbers, social security numbers, account numbers, addresses, or employer references;
- Publish, post or transmit material that contains a formula, instruction, or advice that could cause harm or injury;
- Attempt to gain unauthorized access to any computer systems or networks connected to any Southwestern Company server or to any of the Websites through hacking, password mining or any other means, or from using the Websites to facilitate mail abuse or unsolicited email of any type (spam);
- Publish, post or transmit material that could damage, disable, overburden, or impair any Website;
- Violate any applicable state, federal, or international laws, regulations, or other government requirements; or
- Create a false identity for the purpose of misleading others, or create material that impersonates another or is otherwise unlawful.
Southwestern reserves the right to review materials posted to the Communication Services and/or Websites and to remove any materials at its sole discretion. Southwestern reserves the right to restrict use of the Websites and/or Communication Services and/or deny or terminate your access to any or all of the Websites at any time, based on improper use of such Communication Services, violations of these TOU, or for any reason and in its sole discretion. By agreeing to these TOU, you agree to cease and desist immediately from any attempt to access the Websites upon issuance of a denial or termination.
GOVERNING JURISDICTION OF THE COURTS OF TENNESSEE
The Websites are operated and provided in the State of Tennessee. As such, Southwestern is subject to the laws of the State of Tennessee. Any legal issues arising from or related to your use of the Websites and/or purchases through the Websites shall be construed in accordance with, and all questions with respect thereto shall be determined by, the laws of the State of Tennessee applicable to contracts entered into and wholly to be performed within Tennessee. The state and federal courts of Davidson County, Tennessee, shall be the exclusive forum and venue to resolve disputes arising out of or relating to these TOU or the use of or visit to the Websites. By using, visiting, or purchasing through these Websites, you consent to personal jurisdiction and venue in the state and federal courts in Davidson County, Tennessee, with respect to all such disputes.
If you have any questions regarding these TOU, please contact us at email@example.com.
TERMS OF SALE
Date: June 26, 2012
PRODUCTS AND SERVICES
Southwestern may revise and discontinue its Products and/or Services at any time. Southwestern will ship you Products that have the functionality and performance of the Products you ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. Product availability is subject to change without notice. Southwestern reserves the right to limit quantities. Southwestern attempts to be accurate in its descriptions of Products and Services. Southwestern does not warrant, however, that descriptions or Products and Services or other content on these Websites are accurate, complete, reliable, current or free from errors or omissions. Textures, finishes, colors, patterns, sizes, and other visual features of Products might display differently on your computer monitor than the items appear in hand. Images are shown for representational purposes only. If a Product offered by Southwestern is not as described, your sole remedy is to return it in unused condition.
PRICE AND PAYMENT TERMS
In states where Southwestern has no physical presence, Southwestern is not required to collect and remit sales tax for purchases through its Websites. Many states, however, require that their residents file a sales or use tax return for items purchased on the Websites. For purchases where sales tax is applicable you will see the tax calculated on the checkout page before you are asked to confirm the purchase. Southwestern uses reasonable commercial efforts to calculate and remit the correct amount of tax required on each taxable purchase, but Southwestern does not guarantee the accuracy of the amount of the tax it represents to you as the tax owed. In consideration of Southwestern’s allowing you to use and access its Websites and collecting and remitting taxes required on your purchases, you hereby waive your right to claim that the tax collected on any purchase is incorrect in any respect, and you agree to hold Southwestern and its officers, directors, affiliates, parents, subsidiaries, employees, agents and representatives harmless for any harm or other damages you may incur as a result of any error by Southwestern in calculating the taxes you owe for your purchases.
SHIPPING AND TITLE
If you order a physical Product and not just a Service (online or otherwise), Southwestern will arrange shipping of the Products to your address. Title to the Products passes to you upon delivery to the carrier, and risk of loss passes to you on delivery to your address. The costs of shipping and handling will be shown on your purchase receipt. Southwestern will inform you of estimated shipment dates. All Products will be shipped within thirty (30) days of the order being entered into Southwestern’s order fulfillment system. If, for any reason, a Product cannot be shipped within thirty (30) days, Southwestern will notify you of the delayed shipment. If you do not consent to the delayed shipment, Southwestern will promptly refund all money paid by you for the unshipped merchandise.
INSPECTION OF PRODUCTS UPON RECEIPT
You must examine the Products when you receive them. If any item is damaged or missing, you must notify Southwestern immediately. Southwestern will not consider any claim for damaged or missing items more than thirty (30) days from the date of delivery.
CANCELLATION, REFUND & DISPUTE POLICY
You may cancel your subscription to Southwestern’s SkWids™ and SWadvantage™ online Products and Services in accordance with applicable order cancellation terms and governing law. You will be able to access the online Products and Services during any remaining subscription cancellation periods. Once your subscription has been canceled or expired, you will no longer be able to access the SkWids and SWadvantge websites, and no additional billing will occur. You can cancel by calling our customer contact center by phone, at 1-888-551-5901, or by email at firstname.lastname@example.org, or you may cancel yourself by logging in, navigating to the membership page and selecting “cancel.”
Southwestern Advantage is not liable for any incurred bank fees or transactions related to monthly subscription charges and subscription fees are non-refundable. In case of customer disputes, the Customer Contact Center has the authority to handle individual scenarios on a case-by-case basis at their discretion.
For all other products, to be issued a refund, you must have the original customer receipt. You will be issued a refund in the same method by which you paid. When issuing refunds, Southwestern will refund the amount charged and is not liable for any incurred bank fees or transaction fees. You must ship the Products to Southwestern in their original packaging, prepay shipping charges and insure the shipment or accept the risk of loss or damage during shipment. Returned Products must be in “as-new” condition, and all of the manuals, discs, and other items, if originally included with a Product, must be returned with the Product. Any returned Product shipped C.O.D., or without a Return Authorization Number visible on the exterior of the carton, may be refused by Southwestern. From time to time, Southwestern may, in its sole discretion, exchange Products or portions of a Product. Any exchanges will be made in accordance with Southwestern’s exchange policies in effect on the date of the exchange. See Notice of Cancellation on the back of the yellow and white receipt.
NOT FOR RESALE
You agree and represent that, in the event you purchase Products or Services through the Websites, you are doing so for your own internal use only, and not for resale.
INTELLECTUAL PROPERTY POLICY
Date: June 26, 2012
Ownership of Website and Content
The Southwestern websites including, without limitation, www.swadvantage.com, www.advantage4parents.com, and www.skwids.com (the “Websites,” and each individually, a “Website”) and their contents are intended for your personal use. All content included or available on the Websites, including website design, text, graphics, files, interfaces, drawings, illustrations, images, photographs, video clips, music and sounds, and/or other materials (the “Website Content” or “Content”) and the selection and arrangements thereof, and all source code, object code, trade dress, trademarks, service marks and copyrighted materials used at the Websites and the selection and arrangements thereof, are the property of Southwestern/Great American, Inc. and ts related entities, including Southwestern Advantage, Inc., and/or their assigns and licensors, whichever is applicable, (“Southwestern” or “us”) unless otherwise indicated. Southwestern reserves all rights in such Content.
Procedure for Reporting Copyright or Other Intellectual-Property Infringement
You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Southwestern to terminate the privileges of any user who infringes the copyright rights of others upon receipt of prompt notification to Southwestern by the copyright owner or the copyright owner’s legal agent. Pursuant to Section 512(c) of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act, Southwestern designates the following as its agent for receipt of notifications of claimed copyright or other intellectual-property infringement:
By email: email@example.com
By phone: 615-391-2500 (switchboard)
By fax: 615-316-5460
By regular mail:
The Southwestern Company
Attn: Intellectual Property Claims
2451 Atrium Way
Nashville, TN 37214
To notify us of a claimed infringement of your copyright or other intellectual-property right by material residing on or accessible through these Websites, you must contact us in writing by regular, fax or email at the addresses provided above and provide 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 on this website are covered by a single notification, a representative list of such works at the 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 us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- The following statement by you: “I 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
- The following statement by you: “The information in this notification is accurate, and I, as the complaining party, declare under penalty of perjury that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Inquiries that do not follow this procedure may not receive a response. Upon receiving a claim of infringement, we may, in our discretion, remove or disable the material claimed to be infringed.
Please be advised that if you materially misrepresent that material is infringing your intellectual property, you may be liable for damages (including costs and attorneys’ fees). If you are not sure whether the material infringes on your intellectual property, you should consider contacting an attorney before contacting us.
How to Respond to a Claimed Infringement
If we remove or disable the material claimed to be infringing, we will take reasonable steps to notify the owner of the material of the claim, and the owner will then have the option to send us a counter-notice why the content does not infringe another’s intellectual-property rights and requesting reinstatement of the content. The counter-notice must be in writing and include the following information:
- The owner’s physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- The following statement by the owner: “I declare, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and
- The owner’s name, address, and telephone number, and the following statement by the owner: “I consent to the jurisdiction of the Federal District Court for the judicial district in which my address listed in this notice is located, or if my address is outside of the United States, for any judicial district in which The Southwestern Company may be found, and I will accept service of process from the person who provided notification of infringement or an agent of such person.”
If we receive a counter-notice under these provisions, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the original complaining party files an action seeking a court order against the individual or entity who placed the content, the removed material may be replaced or access to it restored in 10 to 14 business days after receipt of the counter-notice, at our discretion.