BY REGISTEREING FOR OR OTHERWISE ACCESSING OR USING THE SOFTWARE/ SERVICE, OR ANY COMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, CONSENT TO BECOME A PARTY TO THIS AGREEMENT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN.
THE SERVICE IS OFFERED AND MADE AVAILABLE ONLY TO USERS WHO ARE LAWFUL OWNERS OF, OR, AT THE RESPONSIBILITY OF SUCH OWNERS, HAVE THE NECESSARY AUTHORIZATION FOR USING, THE NECESSARY MSISDNs AND DEVICES, AND FOR MAKING PAYMENTS IN CONNECTION WITH THE USE OF THE SERVICE. IF YOU ARE NOT SUCH A USER, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND USING THE SERVICES IMMEDIATELY, OR IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE SOFTWARE AND/OR ANY APPLICATION, SOFTWARE, CONTENT, MUSIC, TEXT OR OTHER MATERIAL AVAILABLE THROUGH THE SERVICE IN ANY MANNER.
1. ENROLLMENT IN THE SERVICE
1.2 In order to use / register for the Service, you must be of such age as may be required under any applicable law, guideline or policy. If you are not of such age, please discontinue use of and registration to the Service, or please ensure that your access is supervised by your legal guardian who must agree to all terms and conditions here.
1.3 SWYFTCODE WILL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED, UNLAWFUL OR ILLEGAL USE OF THE SERVICE, SOFTWARE OR CONTENT BY ANY USER OR ANY OTHER PERSON WHO IS NOT A VALID USER.
1.4 The Service currently allows Users to sample, download, and/or stream certain media and content (“Content”) that may be provided through the Service in any format, media or device whatsoever in SwyftCode’s sole discretion.
1.5 The Content may be offered to you either on a subscription basis and/or as payment per download, subject to the limitations provided herein. Your subscription and/or ability to download any Content may be restricted by territory in SwyftCode’s sole discretion with or without notice.
1.6 Notwithstanding anything else in this Agreement, the method in which SwyftCode provides the Content and/or the terms and conditions on the which SwyftCode allows registration and access to, and use of, the Services, shall be subject to change at all times in SwyftCode’s sole discretion, without any advance notice to you.
1.7 Access to and use of the Service may be internet based. You will be responsible for obtaining Internet connectivity and paying all fees in connection with it. In addition, you must procure all equipment necessary to ensure access to the Internet and to be able to use the Service and download and listen to and/or view the Content, including, but not limited to, compatible mobile handsets, tablets, personal computers, television, routers, and internet access services.
1.8 We may access your MSISDN through the operator or may request you to enter your details along with the mobile number. You will be able to use the Services only on one authorized device connected to your MSISDN. In the event you attempt to register another device with the same MSISDN, the use of the Software will be terminated on previous devices. You may also access our Services from a Social Networking Site (“SNS”), such as Facebook. In the event you access our Services through the SNS, You agree to (a) provide us access to personally identifiable information such as user name, phone numbers, home location, work location, current location, email address, interests, etc; (b) post on SNS certain notifications/ events; (c) access your friends list and other activities. If you do not want the Software to post notifications on SNS on your behalf or access your friends list, you may change the settings on SNS, if available. If you register using any SNS account(s) (as allowed by SwyftCode), you will be entirely responsible for maintaining the privacy and security of such SNS accounts. Further, you understand that SwyftCode does not control such accounts in any way and SwyftCode in no way will be responsible for the safety and security of such accounts.
2. MUSIC CONTENT
2.1 Rights Granted. Subject to your payment in full for accessing the Service and/or for the use of the Content, we grant you a non-exclusive, non-transferable, restricted, revocable and limited right to use the Content only for your personal use, for non-commercial purposes, and always subject to the terms of this Agreement.
2.2 Restrictions. You must comply with all applicable copyright and other laws in connection with your access to the Service and use of the Content. You may not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sublicense or otherwise transfer or use the Content, unless otherwise allowed under this Agreement. We do not grant you any synchronization, public performance, promotional use, commercial sale, resale, reproduction, rental or distribution rights in the Service or the Content. As part of the Service, SwyftCode may allow you to share your playlists and other Service-related activity(ies) on SNS websites. You will be solely responsible for any activity, playlists or other materials that you share, provided that you allow SwyftCode to re-post, re-share and otherwise use such materials that you share.
2.3 Purchased Content. You may be allowed to purchase Content through the Service/Software. Upon SwyftCode’s successful receipt of the payments related to such purchase, you will have the right to retain a copy of such Content for your use as the owner of that copy of the Content, subject to the underlying rights (including copyrights and other intellectual property rights of the authors, composers, performers, artists, publishers and record labels). Any Content that you purchase through the Service. Your use of such downloaded Content may be restricted as per existing laws and rights of such third parties. You will be entirely responsible for your use in any manner of any purchased Content.
2.4 Subscribed Content. Any Content that is provided to you on a subscription basis is for your personal use only and only for the duration of the subscription if all related payments have been paid as necessary. Your rights to use and access the subscribed Content will end automatically upon expiry of the subscription period. SwyftCode reserves the right to restrict your access and use of the subscribed Content before the expiry of the subscription period if you are in default of this Agreement.
2.5 All Sales Final; Explicit Content. All sales of Content through the Service are final and risk of loss transfers to you upon such sale. We do not accept returns of Content. We have no liability for Content you find to be offensive, indecent or objectionable. You understand that SwyftCode is not the author of the Content and has no control or right over the creation or the substance of the Content. SwyftCode does not screen the Content in any manner before making it available to the Users through the Service. All Content is provided as-is.
2.6 Unique Identifiers. SwyftCode may insert identifiers in the metadata that accompanies the Content and that uniquely identify it as Content you have purchased from us (“Unique Identifiers”. These Unique Identifiers may include a random number we assign to your order or copy, purchase date and time, an indicator that the music was downloaded from the Software using the Service, codes that identify the album and song (the UPC and ISRC) and the origin of the Content, and other such information. Content that includes Unique Identifiers may be marked in the relevant place from where you download the Content. These Unique Identifiers do not affect the playback experience in any way. You may not, and you will not encourage, assist or authorize any other person to, modify, reverse engineer, decompile or disassemble, or otherwise tamper with, the Unique Identifiers, whether in whole or in part.
2.7 You acknowledge that SwyftCode will not censor or edit any portion of the Content before providing access to You/ the Users. By using the Service, you expressly acknowledge and agree that SwyftCode shall not be responsible for any damages, claims or other liability arising from or related to your use or download of any Content, or from the use of the Service in any manner.
2.8 You further acknowledges that SwyftCode at all times will have the unrestricted right to track all your activity on the Service, Software and subscription to and download of the Content. SwyftCode reserves the right to use such information for marketing, business, development, evaluation and service-enhancement purposes.
3. HELLO TUNES
The Software may allow you to set any Content as Hello Tunes on your phone subject to the standard charges and terms and conditions of Hello Tunes service.
TECHNOLOGICAL AND USE LIMITATION
3.1 SwyftCode will make reasonable efforts to keep the Software and Service operational. However, certain technical difficulties, routine maintenance/upgrades and any other event outside the control of SwyftCode may, from time to time, result in temporary service interruptions. SwyftCode also reserves the right at any time and from any time to modify or discontinue, temporarily or permanently, functions of the Software/ Service with or without notice. You agree that SwyftCode shall not be liable to you or any third party for any direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
3.2 By enrolling in and/or using the Service, you acknowledge and agree that you have no right to provide the Content and any materials obtained through the Service to any other party through any means. You may only retain one copy of the downloaded Content and any materials obtained through the download portion of the Service for your personal use. You understand and agree that any material obtained through the streaming portion of the Service to your device is solely intended for real time listening and viewing and not intended for copy, storage or permanent download even for your personal use. You will not try to download or make copies of any streaming Content through any means on any device for any reason.
3.3 The Service is designed for personal sampling and use. You are not allowed to use any automated system for the selection, downloading, or streaming of any portion of the Content. You may not use any method or technology to record, capture, or otherwise copy and/or reproduce any file obtained through the streaming portion of the Service. You may not use any script or other mechanism to collect, scrape, or gather any information or date from the Service. In the event SwyftCode determines, in its sole discretion, that you are in breach of this clause, it may terminate your access of Services and take such measures available in contract, law and equity that it may deem appropriate.
3.4 You agree that you are not allowed to gain access to or use the account, MSISDN or device of any other person for using the Content in any manner. You will also not gather information and data on any other person’s use of the Service for any reason. You hereby represent that you have the complete authority to use the device you are using for availing the Service and/or the Content, and will be liable for any transactions made from that device in connection with the Service.
3.5 You understand that your use of and access to the Services at all times may be allowed / restricted on certain devices only in SwyftCode’s sole discretion. You may not use the Services on any devices, platforms or format that SwyftCode has restricted.
3.6 Misuse of the Services (or use in a manner not in accordance with the intended purpose for which the Service, Content or Software is provided to Users) in any manner is strictly prohibited. You will not use the Service in a way that (a) is not for personal use, (b) is meant to circumvent the use restrictions on the Service and Content as specified under this Agreement or directly from SwyftCode from time to time, (c) adversely affects or is meant to distort any data, information or other metrics collected or that may be collected by SwyftCode in relation to the provision of and Users’ of the Services, Content, Software and other materials. Any violation by you of this provision may be a fraud against SwyftCode.
3.7 You may not use or allow others to use your MSISDN and/or the Service, Software or Content, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that: (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive, or against public interest and sentiment; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your MSISDN/ device. You also may not use, nor allow others to use, your MSISDN/ device, the Service, Software or Content, directly or indirectly, to: (a) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by us or anyone else; (b) act in a way that affects or reflects negatively on SwyftCode, SwyftCode’s goodwill, the Service, or anyone else; (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party’s prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.
3.8 You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access, including without limitation, those of any other Users; (b) attempting to probe, scan or test the vulnerability of the Service/ Software or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm, malware, backdoor code or Trojan horse; or (d) sending unsolicited e-mails or other information, including promotions or advertising. Violations of system or network security of SwyftCode or any of the Users, or violating this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and we may involve, provide information to and cooperate with, law enforcement authorities in prosecuting Users and any other persons who are involved in such violations.
3.9 You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc. or “load testers” that accesses the Service in a manner that sends more request messages or download requests to SwyftCode’s servers in a given period of time than a human can reasonably produce in the same period by using the Software or Service, and you are forbidden from ripping the Content unless specifically allowed.
3.10 You acknowledge that SwyftCode derives its rights to use the Content and other materials offered on the Service from artists, record labels, publishers and other third parties, which rights may be available to SwyftCode for fixed periods of time sand/or for limited methods of distribution and/or or for limited territories. In addition, SwyftCode may be required to pull certain media, Content or other materials off the Service (or otherwise restrict access to them) for legal or commercial reasons. Therefore, SwyftCode reserves the right to remove any such content from the Service and/or put in place any number and manner of restrictions on the access or use of such content. For example, certain Content, media or materials offered or advertised by SwyftCode may no longer be available or may not be available at certain times, or may be limited to download or streaming only, or the manner and means of distribution, storing and access of the same may be restricted in any manner, including without limitation, restrictions on territory. You will have no claims whatsoever against SwyftCode placing such restrictions or removing any Content with or without notice.
3.11 You agree that you will not, and you will not encourage, assist or authorize any other person to, for any reason whatsoever, reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the Service, Software or the Content available on the Service. You further agree that you will not, and will not enable others to, copy (except as expressly permitted hereunder), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of the Software or any software that is a part of the Software/Service, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the Software or Service). Any attempt to do so is a violation of the rights of SwyftCode. You agree to abide by the rules and policies established from time to time by SwyftCode. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Software or Service and obtaining available patches to address security, interoperability, and/or performance issues.
3.12 You will not use the Service, Software or Content for any unlawful means.
3.13 SwyftCode reserves the right to immediately and permanently terminate your access to the Service if SwyftCode believes that you are violating any of the limitations listed in this section.
4. PER DOWNLOAD MUSIC SERVICE:
4.1 The Service includes also the ability for you to purchase music downloads independently from any music subscription Service. By registering for such Per-Download Music Service, you agree that you will pay all fees and charges accrued by or in connection with your MSISDN/ device for the music Service (including any applicable purchase price, taxes and late fees) at the rates in effect when the charges were incurred, and that SwyftCode may charge the method of payment designated during the registration process. All fees and charges are nonrefundable. All sales are final. If you want to designate a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Per-Download Music Service using your MSISDN/ device without your authorization, you must contact SwyftCode immediately at firstname.lastname@example.org. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING SWYFTCODE WITH A VALID METHOD OF PAYMENT FOR PAYMENT OF ALL FEES.
4.2 SWYFTCODE RESERVES THE RIGHT, AT ANY TIME, TO CHANGE PURCHASE PRICES ON ITS PER-DOWNLOAD MUSIC SERVICE. SWYFTCODE DOES NOT PROVIDE PRICE PROTECTION OR REFUNDS IN THE EVENT OF A PRICE REDUCTION OR PROMOTIONAL OFFERING.
4.3 In the event you purchased on the Per-Download Music Service a track or album but it fails to download completely, SwyftCode may allow you to retry the download by clicking the “retry download” button on the album page. In any other event of technical errors when downloading a track or album, please contact Customer Service by sending an email to email@example.com
5. BILLING & PAYMENTS
All billing and payment for your use of the Service (whether subscription and/or per download), Software and/or Content shall be as per the existing policies of SwyftCode, subject to change from time to time. You acknowledge and understand that SwyftCode may use third party partners and gateways for processing any payments from you. SwyftCode does not control such partners and gateways and any transactions through them will be subject to separate terms and conditions of such third parties / gateways. Any personal or sensitive information that you provide in relation to such billing and payment shall be subject to SwyftCode’s Privacy Notice and/or the policies of such third party partners / gateways, as the case may be. SwyftCode will not be responsible for the protection and privacy of your information if the payments are processed directly by such third party partners / gateways without any involvement of SwyftCode in the processing of the payment other than providing necessary access.
6.1 The Service or SwyftCode’s website may contain advertising content from SwyftCode or any other third party. SwyftCode does not take any responsibility of any such third party advertising materials, and will not be liable for any of your actions or purchases or losses that you may suffer in relation to or as a result of any such advertising.
7.1 We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and it will not limit any other rights or remedies which are available to us.
7.2 Termination of this Agreement by SwyftCode shall not relieve you of any obligations to pay accrued charges, including any prorated charges accrued for the billing cycle in which this Agreement is terminated, or any other outstanding amounts for your use of the Service, Software or Content.
7.3 Without limitation to any other provisions hereof regarding termination, we reserve the right to terminate your use of the Service for any or no reason upon reasonable notice.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 You will not violate the copyright and any other intellectual property rights in the Content, Software and Service by any means for any purpose. Service, Software or Content may contain third party materials, software, code, script or other materials licensed by SwyftCode from such third parties. You acknowledge that such third parties retain ownership and all rights in such materials and You will not infringe the rights of any such third parties in any manner, including without limitation, reverse engineering, decompiling, disassembling or otherwise tampering with such materials. The Content, Software and the Service is protected by copyright, trade dress, patent, trademark and other laws, international conventions and proprietary rights and all ownership rights to them remain with (as the case may be) the relevant third parties or SwyftCode, or their licensors or its suppliers.
8.2 Only you may access the Service using your MSISDN/ device. The content available through the Service is the property of SwyftCode or its licensors and is protected by copyright and other intellectual property laws. Content received through the Service may be viewed, used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, perform, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of SwyftCode. You further agree not to make use of the Content in a manner that would infringe the copyright therein.
8.3 You acknowledge that SwyftCode retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Service or the Content, and SwyftCode reserves all rights not expressly granted hereunder. You shall promptly notify SwyftCode in writing upon your discovery of any unauthorized use or infringement of the Service (or the Content) or SwyftCode’s patent, copyright, trade secret, trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
8.4 You will not create any derivative works of whatever kind or nature of the Software or any Content without the prior written consent of the relevant third party and/or SwyftCode (as applicable), even if such derivative works are not meant for commercial use.
8.5 By posting messages, submitting reviews, inputting data, suggesting playlists, suggesting ideas or engaging in any other form of communication through the Service (collectively referred herein as “User Material”), you are not forfeiting any ownership rights in such User Material and you continue to retain all of the same ownership rights. By submitting or posting User Material, you irrevocably grant SwyftCode a perpetual, fully-paid, royalty-free, sub-licensable, transferable license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publish any such content and all intellectual property rights associated therewith, through the world in any media formats and any media channel now know of hereinafter devised for any promotional or commercial purposes, during the full term of copyright and all renewals and extensions thereof, without any obligation to make any payment to you or others or to give you credit. In the event SwyftCode decides to give you credit, at SwyftCode’s sole discretion, you further grant SwyftCode the right to use your name and likeness under the license contain in this paragraph in association with your User Material and the promotion and advertising thereof. You also waive any right to inspect or approve any final product.
8.6 By submitting or posting the User Material, you represent and warrant that you own the User Material. You also represent and warrant that the posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights. By submitting or posting the User Material, you agree that your submission of the User Material does not in any way implicate you as an employee, agent, or partner of SwyftCode. You also agree to comply with SwyftCode’s community rules. By submitting or posting the User Material, you further forever release and discharge SwyftCode, its affiliates, advertising agency, successors, assigns and their respective officers, employees, agents from any and all claims, actions and demands arising out of, or in connection with, the use of your User Materials, your name and biographical data, including, without limitation, any and all claims for invasion of privacy and libel. This release shall inure to the benefit of the assigns, licensees and legal representatives of SwyftCode. You warrant that any User Materials will not contain any material that is obscene, defamatory/libelous to any party (including SwyftCode or its Affiliates and any of the Content providers), or in violation of any applicable public interest, privacy and other codes, guidelines and laws
9. THIRD PARTY SITES AND INFORMATION
9.2 Our website may include User Material which may be objectionable, unlawful, inaccurate, or inappropriate. SwyftCode does not endorse any User Material, and User Material does not reflect the opinions or policies of SwyftCode. We reserve the right, but have no obligation, to monitor User Material and to restrict or remove User Material that we determine, in our sole discretion, is inappropriate or for any other reason. In no event does SwyftCode assume any responsibility or liability whatsoever for any User Material, and you agree to waive any legal or equitable rights or remedies you may have against SwyftCode with respect to such User Material. Please report inappropriate User Material by emailing us at firstname.lastname@example.org
10. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE Software AND THE SERVICES OFFERED THROUGH THE Software OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, SoftwareS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWYFTCODE, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, AND/OR FOR LOSS OF PROFITS/ REVENUES/ DATA/ BUSINESS, OR FOR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FOR YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM (INCLUDING NEGLIGENCE) OR WHETHER OR NOT SWYFTCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of, or failure to comply with, the terms and conditions of this Agreement, and including infringement of the copyright or any intellectual property right in the Content, Software or Services, (b) your use of the Service, and/or (c) the use of the Service by any other person using your MSISDN and/or device. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
13. CHOICE OF LAW AND CONSENT TO JURISDICTION
This Agreement is governed by the laws of India, without regard to its conflicts of law provisions; and you hereby consent to the exclusive jurisdiction of courts in New Delhi, India with respect to all disputes arising out of or relating to the Service. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates).
14. OTHER IMPORTANT PROVISIONS
14.1 Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section. You shall not use the Service in any manner contrary to local, state or national law. SwyftCode expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your Service immediately upon notice of your failure to comply with any such local, state or national law.
14.2 Our performance of this Agreement is subject to existing laws and legal process and the policies and business decisions of SwyftCode, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use.
14.3 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
14.4 No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.
14.5 You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.
14.7 Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement.
14.8 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.