Switch™ Terms of Services

1 Introduction

 

These terms and conditions (the “Terms”) are applicable to every User of the Switch Services and are incorporated into any agreement between You and Quadient for the use of Switch. Quadient, Inc. is a corporation organized under the laws of Delaware, United States, with a registered address at 478 Wheelers Farm Road, Milford, Connecticut – USA. Quadient, Inc., the Switch website, the application, and the services we provide through it (the “Services”) are referred to in these Terms as “Switch” “We” or “Us”. These Terms are designed to ensure compliance with the laws and regulations that apply to the Services and to protect the interests of all Switch Customers and Licensors, as well as Quadient goodwill and reputation. These Terms are so important that Quadient cannot provide the Switch Services unless You agree to them. By using the Switch Services, You are agreeing to be bound by and comply with these Terms and are responsible for any violation of them. We will enforce and ensure compliance with these Terms by appropriate methods, such as requiring written certification of Your use, audits, monitoring, or any other technical or organizational measures.
If You violate these Terms or authorize or help others to do so, Quadient may suspend or terminate Your use of Switch and may be entitled to additional claims and remedies against You.
If You are accepting these Terms on behalf of another person, organization, company, or other legal entity, You represent and warrant that You have full authority to bind that person, organization, company, or other legal entity to these Terms, and that You will make these Terms available to the respective authorized Users.
If You do not agree to these Terms,

1. do not access, download, install or use the Services or any component of the application; and
2. promptly uninstall and delete all components of the Switch application or Service(s), including any documentation or derived content from Your systems.

These Terms are subject to change if the law governing the Services or the license terms with Quadient’s licensors change.  If there is any conflict or inconsistency between the Terms set forth herein and the Terms published on the Switch application and located at https://wpswitch.wpengine.com, the Terms published on the Switch application shall control.

2 Company Details

 

You can create an account for the purchase of Services on our website or via our app by entering your contact and payment information.  You must have internet access to use the Services. Once you have created an account, You and any other people you authorize to use the Services are each a “User.” If you select a multi-User account, you must enter the names of your Users and their contact information.

3 Switch Services

 

Whenever you buy the Switch Services through this website or the application, you are contracting with Quadient. Our primary business address is 319 W Martin Street, Second Floor, Raleigh, North Carolina, 27601 – USA.
Email address: [email protected]

• Start by uploading your document(s)
• Enter the destination address, which we automatically verify is an existing address
• Customize your letter details
• We print, stuff, and add postage to your mail and handed to the United States Postal Service (“USPS”) for delivery within 2 working days of creation

Your document(s) must be:

• PDF or Word documents
• In US letter format
• Less than 4MB
• Fit within the page limitation for your chosen envelope type
• Addressed for delivery in the United States (“US”)
• Sent by users over 18 years old who are not prohibited users under US export control laws

The fees for the Services are shown in the Switch application as a part of the sending process. You can pay these fees and any applicable taxes using a credit card, debit card, or any other payment method we make available at the time You create Your account. The fees are subject to change at any time.
You can pay for some Services using the “Wallet” function.

1. The USPS advises that first-class mail takes an average of one to three days to arrive at its destination. Switch does not guarantee delivery dates or times.
2. If there is any major or unforeseen mechanical fault or force majeure beyond the control of Switch, Switch will use reasonable efforts to get all envelopes to the USPS as soon as possible
3. Switch may adjust its postage rates at any time
4. You are responsible for the accuracy of the delivery address you enter in your envelope(s)

Neither Switch, nor any delivery service we use, shall be liable for any failure to perform Services when such failure or delay results from any circumstances outside of our reasonable control, including but not limited to weather, fire, unavailability of transit or internet connectivity, riot, terrorism, act of God, contagion, industrial dispute, or strike.

Once your document is loaded and you have sent it, the document is routed for printing and sending and cannot be amended or cancelled.

4 User Restrictions, Ownership

 

You may not:

1. Disclose to any third party, without Switch’s prior written consent, any
   1. Benchmark or performance tests of the Services,
   2. Data that Switch makes available to you in performance of the Services (“Enrichment Data”), or
   3. Confidential Information (as defined below);
2. Access the Services to build or market a competitor to the Switch application or a service competitive with the Services;
3. Access the Services to build a product or service using similar ideas, features, functions or graphics of the Services or to copy any features, functions, or graphics of Switch;
4. Use, copy, modify, or distribute the Services except as provided in herein;
5. reverse assemble, reverse compile, or otherwise translate the Services;
6. Modify or create any derivative works of any Services;
7. Remove any product identification, proprietary, copyright or other notices contained in the Services;
8. Decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for any part of the Services; or
9. Redistribute, encumber, sell, rent, lease, sublicense the Services or any part of the Services.

 

Your Switch account grants you a limited, non-transferrable, non-exclusive right to use the Services for your personal or internal business purposes and does not contain any license or intellectual property rights. As between the parties, All programs, services, processes, designs, software, technologies, trademarks, trade names, service marks, trade secrets, copyrights, logos, inventions, domain names, patents, patent applications, documentation accompanying Services, and materials comprising of the mobile application, website and Services are wholly owned by Switch, its Affiliates, and/or its Third Party Service Providers except where expressly stated otherwise. You may not use Switch’s or any Third Party Service Provider’s trade secrets, trademarks, trade names, service marks, logos, domain names, patents, copyrights, or other intellectual property rights without Switch’s or the applicable Third Party Service Provider’s prior written permission. You agree not to remove, obscure, or alter any proprietary rights notices (including copyright, trademark, trade secret, domain names, and patent notices) which may be affixed to or contained within the application, website and Services. Furthermore, all contents of the mobile application, website and Services, including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement within the Services (“Services Details”) are protected by copyright, trademark, trade secret, patents or other proprietary rights and laws. Services Details may not be reproduced, modified, derivative works created from, displayed, performed, published, distributed, disseminated, broadcasted, or circulated to any third party (including without limitation, the display and distribution of the material via a third-party website or other networked computer environments) without the express written consent of Switch, and/or its applicable Third Party Service Providers. Switch or its Third Party Service Providers owns all rights, title, and interest in and to the Services, Enrichment Data, and pseudonymized data compiled from You and other users of the Services (“Aggregate Data”). Neither Switch, companies owned by or under common ownership with Switch (its “Affiliates”), resellers or distributors are obligated to provide, nor are You acquiring, any right of any kind with respect to the source code for the Services or any part thereof. You acknowledge Switch’s or its licensor’s ownership and intellectual property rights in the Services, source code and software, and will not take any action to jeopardize, limit or interfere in any manner with Switch’s or any third party’s rights related to the Services.

5 Account Management

 

Upon the establishment of a subscription or account, one or more User names and passwords may be generated in connection with such subscription or account (“Credentials”). The Credentials are used to authenticate each User and thereby allow access to the Services, including any of Your data stored as part of the Services. You are solely responsible for maintaining the confidentiality of the Credentials and may not transfer or share the Credentials with any third parties. You acknowledge and agree that Switch and its licensors and suppliers may rely on the Credentials as the sole test to control whether Users accessing and using the Services on Your behalf are authorized to do so. You are fully liable for any act or omission of any Users that access or use the Services with the Credentials or otherwise through Your account. You will: (a) notify Switch immediately of any unauthorized use of any Credentials or account or any other known or suspected breach of security; (b) not impersonate another user or provide false identity information to gain access to or use the Services; and (c) be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all data submitted by You in the course of receiving the Services.

If You create a multi-User account, You are responsible for managing Your authorized Users. Once You have created an account, You may invite the number and type of authorized Users you have activated. Any Users invited to the Switch application may be able to change or delete the information You or they upload to the application. If an accidental deletion happens on Your side, Switch cannot guarantee a back-up. Please make sure You back-up and archive Your data and content in Your own systems regularly.

6 Hosting, Service Restriction and Maintenance

 

• Host Provider

You acknowledge that the Services are hosted in the United States on the Amazon AWS Platform and Azure and are subject to the terms and conditions of Amazon as a Third Party Service Provider, found at https://aws.amazon.com/agreement/

• Service Restrictions

Although the application is accessible globally, use is currently limited to communications between residents of the United States. Services are not available in all languages.We may block access to or suspend certain Services (or certain service features or content) in certain territories and/or countries, e.g. in embargoed countries or where we suspect misuse. It is
Your responsibility to make sure Your use of the Services is legally permitted where You use them. You shall not send to addresses obtained from purchased or rented digital message lists, unless You have confirmed the data was obtained lawfully and with the appropriate consent of the data subjects.

We may create reasonable technical limits on Your content, such as limits on the file size of emails, processing capacity, and other technical limits.

Switch reserves the right to momentarily interrupt the Services for testing, maintenance, traffic performance enhancement or other purposes. Switch’s goal is to schedule planned maintenance of its technical application during non-peak usage hours, but cannot guarantee that this will always be the case.

• Maintenance

In general, during maintenance periods, access and use of the Services may be temporarily suspended or degraded.

Complex maintenance operations will be carried out preferably on low activity level periods (night hours or weekends), and information on the planned date and the predicted duration of the operation will be communicated to You at least seven (7) days before commencement of the operation, wherever reasonably possible.

7 Data and Content

 

• Data

As between the Parties, Your data is used, issued, processed, hosted, safeguarded or stored by Switch or its third-party service providers (“Third Party Service Providers”) on Your behalf and at Your request, is and shall remain Your sole property. Switch or the Third Party Service Providers are nonetheless authorized to access Your Data in order to: perform the Services; maintain and improve the use of the Services; internally monitor and enhance and improve the Services; analyze Your use of the Services, in terms of volume and history; analyze and communicate statistics to our various customers about the overall use of the Services; create and use Aggregate Data, provided the information (i) is aggregated with Switch’s other customers’ data and (ii) and is pseudonymous so that no customer may be directly or indirectly identified.

You agree to comply with the laws and regulations applicable to the processing of personal data in the country where it is collected. To this end, You shall be responsible for carrying out all mandatory reporting and/or consent requirements. If Switch makes Enrichment Data available to You, You may only use that Enrichment Data in connection with Your authorized use of the Services.

You agree, unless we execute a separate agreement to allow it, that the Services shall not be used to process sensitive or special categories of personal data, especially personal data of a medical nature or pertaining to health conditions, including protected health information as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). You also agree that You will not include credit card information, bank account numbers, social security numbers or national insurance numbers in plain text.

You acknowledge that Your data, including personal data, that You transfer to Switch when using the Services may, depending on the geographical location of users, cross borders as they are routed to the servers that host the Services and store the data. You will inform the relevant personal data owners and data subjects accordingly and will obtain any required prior consent.

• Content

You are solely liable (i) for any of Your data, information, or content, in particular the content of any communications (outgoing notifications, emails, surveys, newsletters etc.) sent by any User through the Services, including if such content is provided by a third party or by Switch as part of the Services (hereinafter collectively referred to as “Content”); and (ii) for the Content’s compliance with the applicable laws and regulations.

You acknowledge and warrant that the Content, whether in whole or in part, shall not: (a) infringe, misappropriate, or violate any right of any third party whatsoever, including any intellectual property right; (b) contain any virus or program designed to cause damage, intercept, or misappropriate any system, data, or personal data in a fraudulent manner; (c) contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or regulation; (d) contain any content which may be subject to any rules and regulations promulgated under the U.S. Export Administration Act of 1979 (as amended from time to time) or the U.S. Arms Export Administration Act of 1976 (as amended from time to time); (e) be false, misleading, or inaccurate; or (f) use the Services in violation of any law, including without limitation, the U.S. CAN-SPAM Act or any other similar law or regulation enacted in any applicable jurisdiction.

You will not use the Services in a manner that may lead to any civil or criminal action whatsoever and shall indemnify and hold Switch harmless from any action or penalty incurred because of Your use of the Services in violation of any law, rule, or regulation or failure to comply with these Terms.

You acknowledge that Switch has the right, but not the obligation, to monitor the Services and any data submitted to the Services. Any use of the Services in breach of the foregoing that in Switch’s sole judgment threatens the security, integrity, or availability of the Services may result in deletion or suspension of accounts, removing content, or denying routing of certain data and e-mails or other communications that Switch reasonably believes are necessary to prevent unlawful activity in connection with the Services.

However, Switch will use commercially reasonable efforts available, at its discretion, and under the circumstances to provide You with notice and, where available, an opportunity to remedy such violation or threat prior to any such suspension.

You expressly acknowledge and agree that neither Switch nor any Third Party Service provider shall be liable for any loss or destruction of the Content, including Your Data, and that You shall be responsible for ensuring that You have proper backups thereof.

8 Compliance

 

You will use the Services only in accordance with Your selected account, applicable laws, government regulations, and these Terms, and will comply with terms of service of any valid license software programs, applications, and/or services You use with the Services. You remain fully responsible for Your compliance with these Terms.

You will comply with all applicable laws (federal, country, or otherwise) that govern marketing communications, mail, or email. If Switch receives an unusual number of complaints about your use of the Services, Switch shall be entitled to suspend or terminate/delete the respective User account(s), in which case You shall not be entitled to claim any refund or compensation.

You shall not use any Services to (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send, use, or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children; (iii) store or transmit material in violation of third-party rights; (iv) send, use, or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (vi) commit any act that is detrimental to the good name and standing of Switch, or (vii) attempt to gain unauthorized access to a Services or its related systems or networks.

You shall indemnify and hold Switch, its Third Party Service Providers, and each such party’s Affiliates harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ reasonable fees and costs) to the extent arising out of or in connection with a claim resulting from a breach of the appropriate use described herein, or a claim alleging that Your data infringes copyright, a patent, or a trademark of, or a claim alleging harm to the rights of a third party, provided in any such case that Switch (a) promptly gives You notice of the claim, and (b) gives You sole control of the defence and settlement of the claim (provided that You may not settle such claim unless such settlement unconditionally releases Switch of all liability and does not adversely affect Switch’s business or Services).

You represent and warrant to Switch that:

1. You have all right, title, and interest in and to Your data necessary for its use by Switch hereunder or otherwise in connection with the Services;
2. You will not use the Services, any outputs, or insights generated from the use of the Services, or any deliverables resulting from the Services in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy or data protection;
3. You have obtained all necessary consents and permissions required for the collection and use of Your data within the Services;
4. You are in compliance with all contractual obligations required for the use of any Customer Third Party Applications used hereunder;
5. You are in compliance with these Terms; and
6. Your data – including the access to, storage, reproduction, transfer, and use thereof as contemplated hereunder – does not and will not (a) infringe upon, violate, or misappropriate the intellectual property rights of any third-party, (b) slander, defame, or libel any person, or (c) violate any applicable laws, rules, or regulations.

You are responsible for all activity that occurs via Your Services account. Please notify customer support at [email protected] immediately if You become aware of any unauthorized use of Your Services account. You may not (a) share Your account information (except with an authorized account administrator) or (b) use another person’s account.

9 Export Rules

 

You agree that the Services or any part thereof will not be accessed from, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable export laws, restrictions, or regulations (collectively the “Export Laws”). In addition, if the Services or any part thereof is identified as an export controlled item under the Export Laws, You represent and warrant that you are not a citizen of, or otherwise located within, an embargoed nation (US Export Administration Regulation Website), and not otherwise to be prohibited under the Export Laws from accessing the Services. All rights to use the Services are granted on condition that such rights are forfeited if You or Customer fail to comply with these Terms.

10 Violation of Terms

 

• Our Monitoring and Enforcement

We reserve the right but do not assume the obligation, to investigate any violation of these Terms or misuse of the Services. We may:

1. investigate violations of these Terms or misuse of the Services; or
2. remove, disable access to, or modify any content or resource that violates these Terms or any other agreement Switch has with You for use of the Services.

Switch may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Switch’s reporting may include disclosing appropriate customer information. Switch also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of these Terms.

• Reporting of Violations of these Terms

If You become aware of any violation of these Terms, You will immediately notify Switch and provide Switch with assistance, as requested, to stop or remedy the violation.

11 Data Protection and Security

 

Switch does not own any of Your data. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all of Your data. Switch shall not be responsible or liable for correctness, completeness, deletion, destruction, damage, or loss of Your data. Switch’s use of Your data shall be limited to the purpose of providing the Services to You and for Switch to meet its obligations hereunder. After termination of the Services, You shall ensure extraction or backup of all of Your data. Switch shall have no obligation to retain Your data and may fully delete Your data after 90 days after termination of the Services.

Regarding the processing of Your personal data, please see the Switch Privacy Notice here: https://wpswitch.wpengine.com/privacy-policy.

You acknowledge that any of Your data, including documents and personal data of Users of the Services, may be stored on servers set up in the EU and the United States of America in order to prevent application failure.

Switch will not access or view any of Your data or Content, except as reasonably necessary to perform and improve the Services. Actions reasonably necessary to perform and improve the Services may include, but are not limited to: (a) responding to support requests; (b) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; (c) creating pseudonymized Aggregate Data or Enrichment Data; (d) when required by law (such as when Switch receives a valid subpoena or search warrant); (e) when Switch, in its discretion, deems it is necessary to protect the rights, property, or personal safety of the company, Switch employees, users, or the public; and (f) for enforcing these Terms.
If You and Switch have signed a separate Data Processing Agreement according to Art. 28 of GDPR for the processing of personal data under any User accounts, such agreement shall prevail over these Terms in case of any doubt or discrepancies.

12 Mutual Confidentiality

 

Each of us acknowledges and agrees that any and all proprietary information provided in the use or provision of the Services that are labelled as “confidential” or which a reasonable person would know to be confidential constitutes proprietary information, including but not limited to the Switch Services and documentation, Your User IDs and passwords, Your Content, and Your data necessary to perform the Services (the “Confidential Information”), and each party agrees that it will not, during or after the term of the Services or thereafter, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than an employee, agent, or representative of the other party who must have such information for the performance of its obligations hereunder or in the execution of the duties of his or her employment), unless such duplication, use, or disclosure is specifically authorized by the other party in writing.  You agree that Quadient shall expressly be entitled to disclose Confidential Information You provide to Quadient, to its employees, agents, or representatives as well as to its parent companies and Quadient Affiliates. Such disclosure shall always be confined to the extent that it is reasonably required in order to fulfill Switch’s obligations under these Terms.

Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (ii) was known to or lawfully in the possession of the receiving party or its representatives, as established by documentary evidence, at the time of disclosure by the disclosing party or its Affiliates hereunder, (iii) is acquired by the receiving party from a third-party without breach of any obligation owed to the disclosing party, or (iv) was or is independently developed by the receiving party without access to the Confidential Information.

Neither party shall be in breach of these Terms by reason only of disclosing Confidential Information or Your data which the party is required to disclose by laws or regulations or upon lawful request of any regulatory authority. A party that is required to disclose Confidential Information in these circumstances shall give the other party as much prior written notice of the disclosure as possible (provided that it is not prohibited from doing so) to allow the other party an opportunity to take such steps as are available to it to control or prevent the disclosure. Each party shall be entitled to disclose Confidential Information or Your data to an authority without notifying the other party where the authority has requested or directed that the other party is not notified or informed of the disclosure.

13 Term and Termination

 

These Terms shall be effective so long as your account is active. These Terms shall be effective upon Your activation of the User account and/or the acceptance of these Terms via click-agreement.

Either party may terminate the account (1) if the other party breaches any material part of these Terms and fails to cure such breach within 10 days after delivery of a notice of such breach or (2) for convenience upon notice to the other party or if Quadient no longer offers the Switch Services. In the case of a termination for convenience or end of the Services, Quadient will refund any unused funds You have deposited into your Wallet, but not any funds advanced by Switch in any promotion.

In addition to any other rights granted to Quadient herein, Quadient reserves the right to suspend or terminate Your account and access to the Switch Services with no refund, if Your account becomes delinquent or if Quadient detects any forbidden or dangerous user activity under the account.

Upon termination of Your account, You must immediately uninstall and delete any component or access to the application and the Services and destroy all copies thereof (including copies stored in computer memory).

14 No Warranty

 

1. THE SERVICES ARE PROVIDED “AS IS” “AS AVAILABLE”, AND AT YOUR OWN RISK, AND NEITHER SWITCH NOR ITS THIRD PARTY SERVICE PROVIDERS MAKE ANY WRITTEN OR ORAL, EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR COVENANTS TO YOU OR YOUR USERS REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. SWITCH DOES NOT WARRANT THAT ACCESS TO OR USE OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. SWITCH AND EACH OF ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY, SECURITY, OR ACCURACY. FURTHERMORE, YOU WILL NOT RELY ON ANY REPRESENTATION, WARRANTY, OR COVENANT WRITTEN OR ORAL, EXPRESSED, IMPLIED, OR STATUTORY MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF SWITCH. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES, SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
2. WE AGREE THAT UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT LIABILITY) OR OTHERWISE, SHALL EITHER OF US BE LIABLE HEREUNDER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIT, ANTICIPATED PROFITS, ANTICIPATED SAVINGS, LOSS OF USE OF EQUIPMENT, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES.
3. IN NO EVENT SHALL SWITCH’S TOTAL CUMULATIVE LIABILITY FOR ANY CLAIMS, DIRECT LOSSES, OR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY YOU TO SWITCH DURING THIS AGREEMENT, EVEN IF WE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES, OR DAMAGES AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES TO THIS AGREEMENT. THE SERVICES OFFERED WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU ACKNOWLEDGE THAT THE FEES CHARGED BY SWITCH REFLECT THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW FOR WAIVERS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES.

15 General Provisions

 

1. Headings. Headings and titles of sections and clauses herein are for reference purposes only and are not part hereof and are not intended to be used in the interpretation hereof.
2. Notices. Except as otherwise noted herein, all notices, requests, reports, and other communications permitted or required to be given under these Terms can be given in writing to Switch at the email address listed in these Terms and to You at the email address specified in your account.
3. No Waiver. The failure of either of us to exercise any right or enforce any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other part of these Terms.
4. Assignment. Your account is not transferrable or assignable without Switch’s written consent.
5. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of these Terms and neither of us has any authority of any kind to bind the other in any respect whatsoever or to take any action which shall be binding on the other, except as provided herein or authorized in writing by the party to be bound.
6. If any part these Terms shall be held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, then such provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7. Governing Law & Dispute Resolution. These Terms shall be construed in accordance with the laws of the State of Connecticut, without giving effect to principles of conflict of law. The application of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are expressly excluded. In an effort to resolve informally and amicably any unresolved claim, controversy, disagreement, or breach of this Agreement (a “Dispute”), we agree that each of us shall notify the other in writing of any Dispute hereunder that requires resolution. Any such notice shall list the nature of the dispute, the amount involved if any, and the remedy sought. Each of us shall designate a member of Senior Management to investigate, discuss, and seek to settle the matter within thirty (30) business days after such notice. If the parties are unable to resolve the Dispute then the Dispute may be submitted to a Court in the appropriate jurisdiction as specified in these Terms.
8. No Third-Party Beneficiaries. We do not intend that this Agreement benefit or create any right or cause of action in any third person.
9. Survival. The warranty, confidentiality, and ownership sections of these terms shall survive any expiration or termination of these Terms.
10. Entire Agreement. Together with your account in the web or mobile application, these Terms state the entire agreement between us on this subject and supersede any and all prior negotiations, understandings and agreements between the parties concerning the subject matter. Neither of us shall be liable for any agreements, warranties, understandings, conditions, covenants, or representations not expressly set forth or referenced in these Terms. No amendment or modification of these Terms shall be made except by a writing signed by both of us. All Services supplied pursuant to this Agreement will be provided pursuant to the terms and conditions hereof, which will supersede and override any and all preprinted terms and conditions on any other documents, including but not limited to purchase orders and invoices. You have read, understand, and agree to these Terms. You represent that you are duly authorized to create an account and agree to these Terms.