Effective Date: 4th January 2020
These Terms and conditions are a binding contract between the Parties:
Steven Pegler T/A Swing Pro, ("only-swingers.com", "Swing Pro", "We" and/or "Us") and The Account Holder ("You").
By using or accessing the Site or any of its Services you automatically agree to be bound by these Terms.
Account - Individual membership identifiable by a username and password for the use of the Service. For the avoidance of any doubt, the Account Holder will be the person or body who are represented.
Agreement - These Terms and Conditions are a binding contract and constitute the agreement between the Parties.
Approved Profiles - refers to accounts that have passed our internal compliance checks in accordance with Clause 4.1 and have completed the process outlined in Clauses 2.4 to 2.6.
Company - includes any company, corporation or other body corporate, wherever and however incorporated or established.
Content - games, applications, software, text, audio, pictures, graphics, music, sound clips, images, likenesses, personal information and other works of authorship.
Cookies - This refers to alphanumeric identifiers that We transfer to your computer’s hard drive through your Web browser to enable our systems to recognise your browser.
Lifetime - defined herein as a maximum of 40 years.
Person - includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
Personally Identifiable data and information - defined in accordance with the Data Protection Act 1998.
Photo Identification - in accordance with Clause 1 valid identification includes and is limited to a passport, driving licence, provisional driving licence or any other valid form of government issued photographic identification.
Posting - displaying or publishing any Content on the Site
Users - any person who has an approved account, and is not blocked or otherwise unavailable to you
Service - refers to the social networking and portfolio hosting services.
Site - only-swingers.com website only
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this Agreement includes the Schedules.
1.4 References to clauses and Schedules are to the clauses and Schedules of this Agreement.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 This Agreement shall be binding on, and ensure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes email but shall not include fax.
1.11 Any obligation on a party not to do something includes an obligation not to allow that something to be done.
1.12 Any words following the Terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Membership requirements
2.1 You must be no younger than 18 years old to use this service.
2.2 For the safety and security of our members, We reserve the right to request a copy of valid Photo Identification at any time.
2.3 You may not share your password with anyone else.
2.4 To post Content on the Site, You must create an Account by completing the sign up form. To complete this You will need an email address and a password.
2.5 On completing the sign up form You will be allocated unique numerical identification.
2.6 Following this allocation you may upload your Content which will then be reviewed internally to ensure your Content does not contravene Clause 4.1. If you Content does not pass our internal compliance checks we may remove your request for an Account without notice and are not required to provide any justification for this.
2.7 Your Account is non-transferable and non-assignable.
2.8 Any use of the Service through your Account will be deemed as being used by You.
2.9 You must always provide complete and current information to Us for the Service.
2.10 You must update your information in a timely manner to maintain completeness and accuracy.
2.11 We are entitled to rely on the contact and any other information supplied to Us through your Account.
3. Prohibited Conduct
3.1 You must not, or attempt to, do any of the following:
3.1.1 access, tamper with, or use services or areas of the Service that You are not authorised to access;
3.1.2 alter information on or obtained from the Service;
3.1.3 access or use the Service in any way that is not in compliance with the applicable law, contracts, intellectual property rights or constitutes the commission of a sort, or for any purpose that is harmful or unintended (by us), or other than in full compliance with these Terms;
3.1.4 tamper with postings, registration information, profiles, submissions or Content belonging to Us or other users of the Site and Service;
3.1.5 Use any robot, spider, scraper or other automated means or interface not provided by Us to access the Service or extract data or gather or use information, such as email addresses, available from the Service or transmit any unsolicited advertising, "junk mail," "spam," or "chain letters"
3.1.6 Impersonate or misrepresent your affiliation with Us with any other person, Account Holder or entity;
3.1.7 Frame any part of the Service, or link to the Service, or otherwise make it look like You have a relationship to Us or that We have endorsed You or your Content for any purpose except as expressly permitted in writing by Us or specifically permitted on the Site;
3.1.8 Reverse engineer any licensed software, application, games or any other aspect of the Service or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, Content or code of the Service;
3.1.9 Take any action which might impose a significant burden (as determined by Us) on the Service's infrastructure or computer systems, or otherwise interfere with the ordinary operation of the Service; or
3.10 Send to or otherwise impact Us or the Service (or anything or anyone else) with harmful, illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or other code that could adversely impact the Service or any recipient.
4. Content requirements
4.1 You must not Post to the Service, any Content that We believe is or appears to be:
4.1.1 Infringing upon a third party's Intellectual Property Rights, including but not limited to any Content that is the subject of any claim of infringement;
4.1.2 Of a type that You do not have a right to transmit under any law or under contractual or fiduciary relationships, including but not limited to proprietary and confidential information;
4.1.3 Untrue, misleading, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive to another person's privacy or protected data, hateful, or racially or otherwise objectionable;
4.1.4 Unsolicited, undisclosed or unauthorised advertising;
4.1.5 Software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
4.1.6 Data or information obtained through access that was not authorized by the owner, or that You are not authorised to post; or
4.1.7 In violation of any applicable local, national or international law.
5. Content Monitoring
5.1 We have the right, but are not obliged, to resolve disputes between Users relating to the Service.
5.2 Any solution We may provide of a particular dispute does not create an obligation on Us to resolve any other dispute. The solution We provide of any dispute is final with respect to the Service.
5.3 We are under no obligation to regularly monitor the accuracy or reliability of the Content. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including other Users, are those of the respective author(s) and not Ours.
5.4 We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Service. However, We reserve the right to modify or remove any Content at any time in accordance with Clause 6.2
5.5 We reserve the right to rate Content for the purposes of displaying the highest rated photographical Content on our Site homepage.
6.1 With the exception of any text that You Post on the Site, You may modify your Content at any time without notice to Us.
6.2 We reserve the right to remove any User-Posted Content from the Service at any time without notice to you, including removal of Content that We believe contravenes Clause 9.1.3.
6.3 We reserve the right to modify your Content in size and shape in order for it to be suitable to host on the Service.
6.4 We reserve the right to change these Terms at any time for any reason.
6.5 We will provide notice to You of any material change in the Terms by sending You an email to the email address You have stored in your only-swingers.com Account.
6.6 Any use of the Service 7 days from our notice to You of the change(s) in the Terms will mean that You have agreed to be bound by the amended Terms.
6.7 We reserve the right to modify or discontinue, and restrict or block access to, the Service without notice or explanation to you.
6.8 We are not liable for any such modification, discontinuance or removal of any aspect of the Service.
7. Intellectual Property Rights
7.1 With the exception of text You hereby grant to Us an non-exclusive, world-wide, royalty free licence (consideration complete) regarding your posted Content for the Term of this agreement, subject to, and in accordance with, the Terms of the following provisions:
7.2.1 We may not claim that your Content is our own; and
7.2.2 We may not sell the Licensed Product to any third parties without your prior consent
7.2.3 We may use your Content in accordance with Clause 10.
7.2.3 We may modify your Content in accordance with Clause 6.3
8. Fees and payments
8.1 The type of fees that apply depend on the membership scheme You choose from the following:
8.1.1 Free Service - No fees apply for this scheme and it allows You to host a maximum of 20 photos to your profile at any one time and send 5 messages to any other Users on 1 day.
8.1.2 Premium Service - This membership scheme allows for Lifetime membership to the Site. The fees are a total of £20 payable in one lump sum to Us through your Account. This allows You to host a maximum of 100 photos and allows for an unlimited number of messages to be sent to other Users of the Site.
8.1.3 Top Member - You may choose to pay £3 a month on a rolling monthly basis (cancellation in accordance with Clause 12) or £99 in a lump sum. This allows You to have Lifetime membership with an unlimited number of photos and messages that can be sent to any other Users of the Site.
8.2 Any payments made in accordance with Clause 8.1 will be non-refundable.
8.3 We do not offer discounts to any prices provided in Clause 8.1.
8.4 Any upgrades to your membership scheme are optional.
9. Warranties and indemnities
9.1 By Posting any Content on the Site, You warrant and represent that:
9.1.1 There are no license fees, clearance fees, and other financial obligations of any kind, arising from any use of your Content on the Service;
9.1.2 You are the individual pictured, depicted, seen and/or heard in your Content or You have obtained permission from any third party (including consent from parents or guardians for anyone under the age of eighteen (18)) who appears and/or is heard in your Content to grant the rights to Us described in these Terms;
9.1.3 Your Content is not defamatory, illegal, obscene, explicit, racist, fraudulent and/or harmful to any other third party or User of our Service.
9.1.4 Your Content does not infringe the Intellectual Property Rights, right to privacy, or any other legal or moral rights of any third party;
9.1.5 Your Work is original work and has not been copied wholly or substantially from any other source.
9.1.6 There are no pending litigation proceedings regarding the Content You have posted on our Service.
9.2 We make no representations, guarantees, warranties or conditions of any kind, express or implied, as to the operation and performance of the Service or the Content included in the Service.
9.3 We will not be held responsible for any resulting loss or damage of your Content if the Service needs maintenance or replacing property, material, equipment or data. We, therefore, recommend You keep backup copies of your personal Content that You maintain on or Use with the Service.
9.4 You agree to indemnify Us, and our subsidiaries, affiliates, officers, directors, employees, agents, legal representatives, suppliers, volunteers, and each of their respective successors and assigns from all damages, costs, expenses and other liabilities, including reasonable legal' fees and expenses, relating to any claim arising out of or related to:
9.4.1 Any unauthorised access to and Use by You of the games, software, and other aspects of the Service and the Content;
9.4.2 Your violation of these Terms, and any applicable law or the rights of another person or party;
9.4.3 Any dispute You have with any User of the Service and any dispute You have related to any merchant or advertising found on or through the Service;
9.4.4 Our solution (if any) of any dispute You have with any User of the Service;
9.4.5 Your improper authorisation for Us to collect, use or disclose any Content provided by You; and
9.4.6 Any disclosures made with your permission.
10.1 We may use your Content for marketing purposes.
10.2 With exception to Clause 5.5 and in the event that We decide to use your Content for marketing purposes We will obtain your prior written consent.
11. Protection of Copyright
11.1 We shall notify You in writing giving full particulars if any of the following matters come to our attention regarding Approved Profiles:
11.1.1 any actual, suspected or threatened infringement of the Copyright;
11.1.2 any claim made or threatened that the Work infringes the rights of any third party; or
11.1.3 any other form of attack, charge or claim to which the Copyright may be subject.
11.2 In respect of any of the matters listed in Clause 13.1 We shall, at our absolute discretion, decide what action to take, if any;
11.3 We shall have exclusive control over, and conduct of, all claims and proceedings made in relation to our Service;
11.4 Clause 9.4 applies
11.5 Sections 101 and 101A of the Copyright, Designs and Patents Act 1988 (or equivalent legislation in any jurisdiction) are expressly excluded.
11.6 We reserve the right to terminate any Account or User for infringement or repeated infringement of this Clause and Clause 7.
11.7 We reserve the right to access, preserve and disclose to third parties or regulatory bodies any of your information or data (including personally identifiable information and private communications) related to a written complaint of copyright infringement if We reasonably believe that such access, preservation, or disclosure is necessary or useful to respond or otherwise address such complaint.
12. Duration, Termination and Cancellation procedure
12.1 This Agreement shall commence at the date and time that your Account is created in accordance with Clause 2.4, 2.5 and 2.6.
12.2 This agreement shall continue for a Lifetime provided You are a Premium or Top Member in accordance with Clause 8, unless terminated earlier in accordance with clause 12.4.
12.3 We may, at any time, and without notice or refund to You, terminate your access to the Service and your Account, or block your access to the Service if:
12.3.1 We believe that You may have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, person, or property of Swing Pro, our users, or any other person;
12.3.2 requested by any legal or regulatory body or other government agencies;
12.4 In the event that We are required by law to provide notice of termination or cancellation, We may give prior or subsequent notice by Posting it on the Site or by sending a communication to any email address) that We have for You in our records.
12.5 You may terminate your Account at any time for any reason but You may be requested to provide feedback regarding your reason for terminating your use of our Service.
13. Consequence of Termination
13.1 If your Account or access to the Service is terminated, You may no longer have access to the Content You posted on the Service.
14.1 None of the Authorised Personnel are liable to You or any other person for indirect, incidental, punitive, exemplary, special, statutory, or consequential damages, economic loss, loss of data, loss of privacy, loss of goodwill or any other losses, even if advised of the possibility of such damages and even in the event of fault, tort (including negligence) or strict or product liability. Without limiting the foregoing, in no event will the aggregate liability to You of the indemnified persons exceed, in total, the amounts paid by You to Us.
14.2 Where damages are not seen as an appropriate recourse We reserve the right to rely on equitable remedies including but not limited to injunction, rectification, specific performance, estoppel, account of profits, subrogation and rescission.
15. Third Party beneficiaries
These Terms do not create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship. With the exception of the Indemnified Persons, there are no third party beneficiaries of these Terms.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted and void. Any deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
We may assign, sell and transfer all of our rights and obligations under this Agreement to any person or entity.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy provided that any action is brought within 6 years from the date of the considered breach.
19. Force Majeure
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance of either party shall be extended by a reasonable period proportionate to the circumstances. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.
20. Jurisdiction and governance
20.1 The Agreement and any dispute or claim arising from or in connection with it or its subject matter or formation shall in all respects be governed by and construed in accordance with the laws of England and Wales.
20.2 The parties hereby submit to the exclusive jurisdiction of the courts of England and Wales in respect of any matter arising from or in connection with the Agreement.