Terms of Service
Last updated: October 5, 2022
PicClick, Inc. (“Us,” “We,” or “Our”) is pleased to provide you with the Swurl.com website which we own and operate (the “Site”), which allows you to search the web (our “Services”). Please read these Terms of Service (“Agreement”) carefully, as it governs your use of our Site and Services.
In addition, please be advised that this Agreement contains provisions that govern how disputes between us are resolved, including, if you are in the United States arbitration, a jury trial waiver and a class action waiver.
If you are based in the United Kingdom or in the European Economic Area, certain additional or replacement terms set out in Appendix 1 apply.
1. ABOUT OUR SITE & SERVICES
Our Site and corresponding Services are designed to help you search the web. The Site and Services are not for, or meant to be accessed by, minors. You must be at least the age of 18 to use the Site and Services.
We cannot guarantee the continuous, uninterrupted or error-free operability of the Site. There may be times when certain features, parts or content of the Site, or the entire Site, become unavailable (whether on a scheduled or unscheduled basis) or are modified, suspended or withdrawn by us, in our sole discretion, without notice to you. You agree that we will not be liable to you or to any third party for any unavailability, modification, suspension or withdrawal of the Site, or any features, parts or content of the Site.
2. SECURITY & MONITORING
You are responsible for your respective usernames, passwords, and the security of your computer or device. You shall keep your passwords secure, and take appropriate measures to safeguard the security of your username, password and electronic device(s). We are not responsible for monitoring the security of the Site or Services except as stated herein and to comply with the law. We cannot and do not guarantee that any content of the Site will be free from viruses and/or other code that may have contaminating or destructive elements. It is your responsibility to implement appropriate IT security safeguards (including anti-virus and other security checks) to satisfy your particular requirements as to the safety and reliability of content.
3. REQUIREMENTS FOR USE & RESTRICTIONS
- You may only use the Site only in accordance with these terms and conditions.
- You will not use the Site and Services for illegal or prohibited purposes. Specifically, as one of the conditions of your use of the Site and Services, you agree that you will not use (or plan, encourage or help others to use) the Site and Services in any manner that is prohibited by this Agreement, or which is illegal or prohibited by applicable law.
- You will comply with laws in your jurisdiction. Recognizing the global nature of the Internet, you agree to comply with all local laws and rules regarding online conduct and acceptable data. Specifically, you agree to comply with all applicable laws of your jurisdiction regarding the transmission of technical data and personally identifiable information.
- You may only use the Site in a responsible manner, and not in a way that might damage our name or reputation or that of any of our affiliates.
- Your use of the Site and Services will not infringe or misappropriate the intellectual property rights of any third party.
- You are over the age of 18 and capable of giving legal consent. The Site and Services are not for, or meant to be accessed by, minors. You must be at least the age of 18 to use the Site and Services. You represent and warrant that you are over the age of 18 and you have the full right, power and authority to enter into this Agreement and to fully perform all of your obligations hereunder. You further represent and warrant that you are under no legal disability or contractual restriction that prevents you from entering into this Agreement.
- You have not been previously prohibited from using the Site or Services.
In addition, YOU SPECIFICALLY AGREE THAT YOU WILL NOT:
- Use the Site or Services to upload, post, email, otherwise transmit, or post links to any content, or select any username or email address, that is misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, or racially, sexually, ethnically or otherwise objectionable.
- Use the Site or Services to upload, post, email, otherwise transmit, or post links to any content or information that promotes illegal activity, including without limitation the provision of instructions for illegal activity.
- Use the Site or Services to upload, post, email, otherwise transmit, or post links to any content or information that exploits the images of children under 18 years of age, or that discloses personally identifying information belonging to children under 18 years of age without parental consent.
- Use the Site or Services to collect or store personally identifying information about others without their permission.
- During your use of the Site or Services, impersonate any person or entity, including, but not limited to, falsely state or otherwise misrepresent your affiliation with a person or entity.
- When using the Site or Services, use a misleading email address or enter false and/or misleading information.
- Use the Site or Services to upload, post, email, otherwise transmit, or post links to any content or information that you do not have a right to transmit under any law or regulation or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
- Use the Site or Services to “stalk” or otherwise harass another.
- Use the Site or Services to upload, post, email, otherwise transmit, or post links to any content or information that facilitates hacking.
- Use the Site or Services to upload, post, email, otherwise transmit, or post links to any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- Use the Site or Services to upload, post, email, otherwise transmit, or post links to any material that contains software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Site or Services.
- Use automated means, including spiders, robots, crawlers, or the like to download data from any of our databases, unless said means is by an API that we have specifically approved of.
- Conduct your own contests and promotions using the Site or Services, or use the Site or Services to upload, post, email, otherwise transmit, or post links to any information regarding any raffle, contest or game requiring a fee by participants without our explicit written consent.
- Incorporate information or content from the Site or Services into any email or “white pages” products or services, whether browser-based, based on proprietary client-site applications, web-based or otherwise.
- Engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Site or Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Site or Services in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional web browser, unless said system is by an API that is specifically approved of by us.
- Interfere with or disrupt the Site, Services, servers or networks connected to the Site or Services including removing or changing any content of the Site or attempt to circumvent security or interfere with the proper working of the Site or the servers on which it is hosted.
- Decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any work, including but not limited to software which is deployed in connection with the Site or Services.
- Upload, post, email, otherwise transmit, or post links to any material, or act in any manner that is offensive or contrary to the spirit of this Agreement or our policies available on request.
- Use the Site or Services to cause harm to anyone.
- Use the Site or Services in lieu of, or to replace the need for, a medical professional, or to diagnose a health issue.
- Make the Site or Services available to any third party.
- Remove, alter, or obscure any of our proprietary notices (including any notice of copyright or trademark) or any of those of our affiliates, partners, or suppliers.
- Use the Site or Services in any manner that violates the Policies.
All rights granted to you under these terms and conditions will terminate immediately in the event that you are in breach of any of them.
4. USER CONTENT
You are responsible for information, text, graphics, photographs, or other material (“Content”) you post publicly on the Site and/or through the Services, including its legality, reliability, and appropriateness. By posting Content on or through the Site and/or Services, you represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in this Agreement, and (ii) that the posting of your Content on or through the Site and/or Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate access to the Site and/or Services for anyone found to be violating this Agreement.
You retain any rights you have to the Content, and you are solely responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third party posts on or through the Site and/or Services. However, by posting Content you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Site and/or Services. You agree that this license includes the right for us to make your Content available to other users of the Site and/or Services.
We have the right, but not the obligation, to monitor and remove all Content provided by users. To the extent that you voluntarily post information about yourself publicly, such as a review, you understand and agree that your information is publicly accessible and we cannot, and will not, monitor or protect such information in any way.
Content available on or through the Site and/or Services that you did not create is our property, or used with our permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
5. COPYRIGHT POLICY
We respect the intellectual property rights of others. It is our policy to respond to any claim that content on the Site or Services infringes on the copyright or other intellectual property rights of any person or entity.
DMCA Compliance & Notice. If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent listed below with the following information in writing (see 17 U.S.C 512(c)(3) for further detail). To expedite our ability to process your request, please use the following format:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Site;
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and e-mail address;
- A statement that you 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 law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
DMCA Counter Notice. If you disagree that the content that was taken down is an infringement of another’s work, you may elect to send us a counter notice. To be effective, your counter notice must be a written communication provided to our designated agent that includes substantially the following information (please consult your legal counsel or see Section 512(g)(3) of the Copyright Act to confirm these requirements). To expedite our ability to process your request, please use the format below:
- Your 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.
- A statement under penalty of perjury that you 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.
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Please note that under the DMCA, any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability. All reports and inquiries will be kept confidential, except to the extent necessary to investigate any alleged violation and enforce the terms and conditions of this Agreement. This Agreement is not legal advice, and we are not attorneys or copyright experts. Please consult with your legal representative if you believe your rights are being infringed, or if you wish to respond to an infringement notice. Before sending either a copyright infringement notification or counter-notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with our rights and obligations under the DMCA and do not constitute legal advice. Where applicable, we will comply with the procedures outlined in the DMCA.
You can contact our Copyright Agent via email at firstname.lastname@example.org, or via mail at PO Box 2234, Rancho Santa Fe, CA 92067. Please make the subject line of any email DMCA notice. You can also find our Copyright Agent information for DMCA complaints here.
Third parties such as eBay (i.e., not us) have their own DMCA procedures. If you believe a user on a third party site is infringing on your propriety work, please use that third party’s DMCA complaint procedure. To be clear, eBay has its own DMCA procedure (available here), and we cannot take down images or content from eBay itself. Therefore, if you believe eBay is displaying content that is infringing your rights, you also agree to use eBay’s DMCA procedure to take down this content.
6. OUR INTELLECTUAL PROPERTY & LICENSE
All content owned by us, including but not limited to the overall look and feel of the Site, the Services, and all copyrights, patents, trademarks, trade secrets, the Swurl name and logo, and other intellectual property rights in and related to the Site and Services, are and shall remain, our sole and exclusive property (“Our IP”). All content which is not owned by us (such as photographs and content from eBay, and the eBay name and trademarks) belongs to the owners of such content (“Third Party IP”). We do not own or control the Third Party IP.
We shall own all derivative works and adaptations which are made from, or otherwise incorporate, Our IP (“Derivative Works”). You hereby assign all rights you may have in Derivative Works to us, and agree to cooperate with us in securing our rights to the Derivative Works.
Except as expressly set out here, nothing in these terms and conditions gives you any rights in respect of any intellectual property owned by us or our licensors and you acknowledge that you do not acquire any ownership rights by downloading content from the Site. In the event you print off, copy or store pages from the Site (only as permitted by these terms and conditions), you must ensure that any copyright, trade mark or other intellectual property right notices contained in the original content are reproduced. We grant you a revocable, non-exclusive, non-transferable, limited license to use Our IP as contained within the Site and Services only to access and use the Site and Services to search eBay, and solely in strict accordance to the terms of this Agreement. This license and your right to use the Site and Services immediately terminates upon the termination of this Agreement, which we may terminate at any time, for any reason. To be clear, upon termination of this Agreement, you shall immediately cease all use of Our IP.
7. THIRD PARTY LINKS AND LINKS TO THIRD PARTY WEB SITES
The Site and Services may display, include or make available third-party content (including data, information, applications and other products or services) or provide links to third-party websites or services (“Third-Party Services”). Specifically, we use eBay’s API to make the Services available to you. Content on eBay and links to eBay are available through the Services and Site.
You acknowledge and agree that we shall not be directly or indirectly responsible or liable for any damage or loss caused, or alleged to be caused, by any Third-Party Services, including the Third-Party Services’ accuracy, completeness, timeliness, validity, copyright compliance, use of your personal information or Content, legality, decency, quality or any other aspect thereof. We do not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services.
Third-Party Services and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
8. YOUR SUGGESTIONS
Any feedback, comments, ideas, improvements, or suggestions (collectively, “Suggestions”) provided by you to us with respect to the Site and Services shall remain our sole and exclusive property. We shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without any credit or any compensation to you.
9. MODIFICATIONS & UPDATES
We reserve the right to temporarily or permanently modify, suspend or discontinue the Site or Services, or any service to which it connects, with or without notice, and without liability to you. We may terminate, suspend or cancel your access to the Site and the Services if you violate the terms of this Agreement.
We may also provide enhancements or improvements to the features/functionality of the Site and/or Services, which may include patches, bug fixes, updates, upgrades, and other modifications (“Updates”). Updates may modify or delete certain features and/or functionalities of the Site and/or Services. You agree that we have no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Site and/or Services to you. You further agree that all Updates will be (i) deemed to constitute an integral part of the Site and/or Services, and (ii) subject to the terms and conditions of this Agreement.
You agree to indemnify and hold us and our parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (if any) harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of your: (a) use of the Site and/or Services; (b) violation of this Agreement or any law or regulation; or (c) violation of any right of a third party, including but not limited to the infringement of another’s intellectual property rights.
11. NO WARRANTIES
The Site and Services are provided to you "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, we, on our own behalf and on behalf of our affiliates and our and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Site and Services, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, we provide no warranty or undertaking, and make no representation of any kind that the Site and Services will meet your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
Without limiting the foregoing, we do not make any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Site and Services, or the information, content, and materials or products included thereon; (ii) that the Site and Services will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Site and Services; or (iv) that the Site and Services, the corresponding servers, the content, or e-mails sent from or on behalf of us are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you.
If you are based in the United Kingdom or European Economic Area, please see Appendix 1 instead.
12. LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, in no event shall we be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, for loss of data or other information, for business interruption, for personal injury, for loss of privacy arising out of or in any way related to the use of or inability to use the Site and Services, third party software and/or third party hardware used with the Site and Services, any conduct or content of any third party on the Site and Services, any content obtained from the Site and Services, unauthorized access, use or alteration of your transmissions or content, or otherwise in connection with any provision of this Agreement), even if we have been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. If this exclusion or limitation of liability is held inappropriate or unenforceable for any reason, our maximum liability for any type of damages shall not exceed $50.
If you are based in the United Kingdom or European Economic Area, please see Appendix 1 instead.
If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute waiver of any subsequent breach.
15. AMENDMENTS TO THIS AGREEMENT
We reserve the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. We will post the notice of the changes on the homepage of our Site, for seven days after making the changes.
By continuing to access or use our Site and Services after any revisions become effective, you agree to be bound by the revised terms.
16. ARBITRATION, JURY TRIAL & CLASS ACTIONS
Arbitration. Please read this Section carefully. It is part of your agreement with us, and it affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.
You agree that any dispute related to this Agreement, your use of the Site and Services, or any dispute related to your relationship with us or our affiliates, directors, officers, agents, shareholders, members, subsidiaries, parents, shall be submitted to binding arbitration under the rules of the American Arbitration Association (AAA), located in San Diego, California. The AAA Rules of Arbitration shall govern all aspects of the arbitration you bring, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Arbitration Agreement. The AAA Rules of Arbitration are available on the AAA’s website, https://www.adr.org/Rules/. The arbitration shall be conducted by a single arbitrator, with the prevailing party to pay all costs and attorney fees. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Jury Trial Waiver. Please read this Section carefully. It is part of your agreement with us and affects your rights. It contains a WAIVER OF YOUR RIGHT TO A JURY TRIAL.
You hereby waive your constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. Please read this Section carefully. It is part of your agreement with us and affects your rights. It contains a WAIVER OF YOUR CLASS ACTION RIGHTS.
ALL CLAIMS AND DISPUTES BETWEEN YOU AND US MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
30-Day Right to Opt Out. You have the right to opt out of the Arbitration, Jury Trial Waiver and Class Action Waiver Provisions of this Agreement by sending written notice of your decision to opt out to the following address: PO Box 2234, Rancho Santa Fe, CA 92067, within 30 days from the date you first create use the Services. If you send this notice, then the Arbitration, Jury Trial Waiver and Class Action Waiver Provisions will not apply, and you must bring claims per the Section labeled “Governing Law,” below. If you do not send this notice, then you agree to be bound by the terms of the Arbitration, Jury Trial Waiver and Class Action Waiver Provisions in this Section. Agreeing to arbitration and waiving your rights to jury trial and class action participation is an important decision for you to make. It can shorten the litigation process and result in cost savings, but it also takes away certain rights, such as the right to a trial in front of your peers. Thus, please take time to carefully consider the Arbitration, Jury Trial Waiver and Class Action Waiver Provisions of this Agreement. Since the information provided in this Agreement is not intended to contain a complete explanation of the consequences of arbitration, class action or jury waiver, you may want to consult an attorney.
If you are based in the United Kingdom or European Economic Area, please see Appendix 1 instead.
17. GOVERNING LAW
The laws of California, United States, excluding its conflicts of law rules, shall govern this Agreement and your use of the Site and Services. You consent to the personal jurisdiction of the courts located in San Diego, California. Your use of the Site and Services may also be subject to other local, state, national, or international laws.
If you are based in the United Kingdom or European Economic Area, please see Appendix 1 instead.
18. CONTACT INFORMATION
If you have any questions about this Agreement, please contact us at the following address:
Address: PO Box 2234, Rancho Santa Fe, CA 92067
19. ENTIRE AGREEMENT & CONFLICTS
The Agreement constitutes the entire agreement between you and us regarding your use of the Site and Services.
Additional Terms if you are based in the United Kingdom or European Economic Area
Section 11 shall be deleted and replaced as follows:
We may change the format and content of the Site from time to time. You agree that your use of the Site is on an ‘as is’ and ‘as available’ basis, and at your sole risk.
While we try to make sure that all information contained on the Site (other than any user-generated content) is correct, it is not intended to amount to authority or advice on which reliance should be placed. You should check with us or the relevant information source before acting on any such information.
We make or give no representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, quality, fitness for purpose or originality of any content of the Site and, to the fullest extent permitted by law, all implied warranties, conditions or other terms of any kind are hereby excluded and we accept no liability for any loss or damage of any kind incurred as a result of you or anyone else using the Site or relying on any of its content.
Section 12 shall be deleted and replaced as follows:
Nothing in this Agreement shall limit or exclude our liability to you:
- for death or personal injury caused by our negligence;
- or fraudulent misrepresentation;
- for breach of any term implied by law and which, by law, may not be limited or excluded; or
- for any other liability that, by law, may not be limited or excluded.
Subject to this, if you are a consumer and not a business user, in no event shall we be liable to you for any business losses, and if you are a business user, in no event shall we be liable to you for any indirect or consequential losses, or for any loss of profit, revenue, contracts, data, goodwill or other similar losses, and any liability we do have for losses you suffer is strictly limited to losses that were reasonably foreseeable and shall not exceed in the aggregate US$100 (or local equivalent using Google's search engine exchange rate when liability falls to be assessed).
If you have any dispute with us, we ask that you contact us in the first instance at email@example.com before taking any formal action.
In accordance with the laws of the UK, UK or European customers have the right to bring claims in the courts of England & Wales, Scotland or Northern Ireland or the European country of their residence or can choose to bring claims in the United States. If you are a UK or European consumer and you choose to bring claims in the United States, then you hereby expressly consent to the arbitration provision in Section 17 and the Governing Law provision in Section 18 of this Agreement.
4. GOVERNING LAW
Section 18 shall be deleted and replaced as follows:
The laws of California, United States, excluding its conflicts of law rules, shall govern this Agreement and your use of the Site and Services, other than where mandatory UK laws override.