Terms & Conditions
Welcome to http://www.switch-safe.com, a website (the “Site”) owned and operated by SwitchSafe, Inc., its affiliates, agents, independent contractors, designees and assignees (collectively “SwitchSafe,” “us” or “we”), to provide services to broker dealers, investment advisors, offices of supervisory jurisdiction (“OSJs”), other investment professionals and their Authorized Users (the “Service(s)”) to facilitate product comparisons and assist in compliance with regulatory requirements including product replacement forms and switch forms.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SITE.
By clicking the “I Agree” button, you agree to be bound by, and to act in accordance with, these Terms in order to use the Site and certify that you are at least 18 years of age and are a resident of the United States.
- Your SwitchSafe Account
- Access to the Site and the Service
- Your Rights and Responsibilities
- Links to Third Party Sites
- Disclaimer of Warranties
- Limitation of Liability
- SwitchSafe Trademarks
- Digital Millennium Copyright Act
Your SwitchSafe Account
You may enroll in the Service and create a SwitchSafe Account (“Account”) that will only be accessible to you (“User”) and any other user with whom you have shared access (“Authorized User”). The Service allows you to store, upload, access, download, review, share and delete copies of Your Content and allows limited access to your Authorized Users to view and audit Your Content that has been uploaded into your Account via the internet in compliance with these Terms. We do not review Your Content for accuracy, legality, non-infringement, or for any other purpose. If you create an Account on behalf of a corporate or other legal entity, you represent that you have the authority to bind such entity to these Terms.
Account Username and Password
You access your Account with an Account username and password that you create in the registration process as specified from time to time. We recommend that you change your password regularly.
Protection of Password
You agree that you and your Authorized Users:
- will be the only user of your specific Account username and password
- will not transfer or disclose your password to any other person; and
- will be solely responsible for all usage of the Service through your Account whether or not authorized by you.
If you believe that your password may have been lost or stolen, or that someone has uploaded, viewed, downloaded, shared or deleted any of Your Content from your Account without your authorization, or if you know of or suspect any unauthorized activity in your Account, you agree to immediately notify us at email@example.com
You will have the ability to invite one or more individuals (“Authorized Users”) with whom you may share access to documents or information in your Account. Your Authorized User must also register as a User of the Site in order to gain access to your shared documents or information. You will designate the documents or information in your Account you wish to share with your Authorized User, and you may terminate your Authorized User’s access to the documents or information in your Account at any time.
Access to the Site and the Service
At certain times, access to the Site or the Service may not be available due to maintenance or circumstances beyond our control. We may discontinue or modify access to the Site or the Service at any time without prior notice, and you accept any modifications by your continued use of the Site or the Service.
Suspension, Termination or Deletion of Access to the Site or the Service
We may suspend or terminate your access at any time if you violate any provisions herein or for any other reason, in our sole discretion, without prior notice to you. If we suspend or terminate your access, we reserve the right to permanently destroy Your Content. If you wish to terminate your Account, you may do so by contacting us at firstname.lastname@example.org or by ceasing to pay. If you elect to terminate your Account, we will use reasonable efforts to suspend access to the Account and to destroy Your Content in accordance with the terms of these Terms, subject to valid legal process procedures. If you instruct us to delete any specific item of Your Content, we will take reasonable steps to do so, subject to internal procedures and valid legal process. Your Content, which is so deleted or destroyed, may result in the permanent loss of Your Content which may not be recovered.
We reserve the right, without notice to you, to destroy any portion of Your Content which we deem, in our sole discretion, to be illegal, offensive, inappropriate, or in violation of these Terms or their intent.
Your Rights and Responsibilities
You represent and warrant to SwitchSafe that:
- you have full power and authority to enter into these Terms;
- the information you have provided and will provide will be true, accurate, current and complete;
- you will not misrepresent your identity;
- you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow SwitchSafe to perform its obligations) in connection with the Services without obtaining any further releases or consents;
- Your Content and your other activities in connection with the Service, and SwitchSafe’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is unlawful or illegal; and
- You will comply with all applicable laws regarding the exportation and re-exportation of any data from the United States through the Service.
You also agree not to:
- upload, post, transmit, or otherwise make available any of Your Content that is unlawful or illegal, including without limitation content that is libelous or invasive of another’s privacy;
- use the Service to harm minors in any way;
- use the Service to download or view any objectionable material including harassing, threatening, harmful, vulgar, pornographic or obscene material;
- use the Service for illegal, offensive or abusive behavior including gambling and disseminating fraudulent or deceptive goods or schemes;
- impersonate any person or entity, including, but not limited to, a SwitchSafe employee, or other user, or falsely state or otherwise misrepresent your affiliation with a person or entity or falsify the origin of any electronic file;
- use the Service to download or view any illegal materials not permitted by these Terms including commercial music or video files, code or material that violates the intellectual property rights of others;
- manipulate identifiers in order to disguise the origin of any of Your Content;
- upload, post, transmit, or otherwise make available any of Your Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- upload, transmit or otherwise make available any of Your Content in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- use the Service for any commercial purpose or to upload, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or sale of digital content;
- use the Service to upload, transmit, or otherwise make available any software virus, worm, “Trojan horse” or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, including using any device or software;
- modify, adapt, or hack the Service, including by using any non-public SwitchSafe APIs, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks or access or attempt to access to an account on the Site without authorization including the circumvention of security measures or copy, modify, share or display any information or data from any such account;
- use the Service for phishing, scamming, password robbery, spidering, harvesting or similar activities;
- intentionally or unintentionally violate any applicable local, state, national or international law in connection with your use of the Service, including, but not limited to, any data, privacy, or export control laws, and any regulations having the force of law;
- use the Service to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and
- use the Service to build a competitive product or Service.
You acknowledge, consent and agree that SwitchSafe may access, preserve and disclose your account information and Your Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to claims that any of Your Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of SwitchSafe, its users and the public.
Links to Third Party Sites
The Site may contain links to other websites. We do not monitor or check the accuracy of such third-party materials and accordingly, we have no control over such third-party sites and resources. We: (a) not responsible for the availability of such external sites or resources; and (b) do not endorse and are not responsible or liable for any advertising, products or other materials on or available from such third parties. If you decided to access a third-party link, you do so at your own risk. You should review any terms and conditions and privacy polices prior to navigating to such third-party site from the Service.
Disclaimer of Warranties
THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND SWITCHSAFE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT SWITCHSAFE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY THAT ANY DEFECTS OR INACCURACIES WILL BE CORRECTED. SWITCHSAFE MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM SWITCHSAFE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL SWITCHSAFE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, GOODWILL, LOST DATA, FILES OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR DAMAGES THAT RESULT FROM USE OR LOSS OF USE OF THE SERVICE AND THIRD-PARTY CONTENT, INCONVENIENCE OR DELAY OR (B) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, FIVE HUNDRED ($500) U.S. DOLLARS, OR (C) ANY MATTER BEYOND OUR DIRECT CONTROL OR THE DIRECT CONTROL OF OUR THIRD-PARTY PROVIDERS. THIS INCLUDES FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES (INCLUDING TELEPHONE, CABLE AND INTERNET), UNAUTHORIZED ACCESS, MISUSE OF UNIQUE ID OR PASSWORD, VIRUSES, THEFT, OPERATOR ERRORS, SEVERE OR EXRAORDINARY WEATHER (INCLUDING FLOOD, EARTHQUAKE OR OTHER ACT OF GOD), FIRE, WAR, INSURRECTION, TERRORIST ACT, RIOT, LABOR DISPUTE AND OTHER LABOR ISSUES, ACCIDENT, EMERGENCY OR ACTION OF GOVERNMENT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, SWITCHSAFE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
All trademarks and service marks on our Site belong to us except third-party trademarks and service marks, which are the property of their respective owners.
Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any content on the Site infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- Your address, telephone number, and email 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 the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement is Bart Loethen; email: email@example.com; fax: 312.454.0261. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless SwitchSafe, its officers, directors, employees, agents, attorneys and representatives from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), whether known or unknown, contingent or otherwise, arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that Your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the Service.
Term and Termination
These Terms will continue in full effect unless and until your Account or these Terms are terminated as described herein. Service plans that are paid monthly will automatically renew for additional months, and Service plans that are paid annually will automatically renew for additional years. You have the right to deactivate your Account at any time by using the account deactivation interface provided as part of the Service. If you elect to terminate your Account, we will take reasonable steps to suspend access to your Account and destroy Your Content subject to valid legal process. If you direct us to delete any specific item of Your Content, we will take reasonable steps to do so subject to valid legal process procedures. Your Content which is so deleted or destroyed may result in the permanent loss of Your Content which may not be recovered.
We reserve the right to deactivate, suspend or terminate your Account (or the access privileges of any User) and terminate these Terms at any time if you violate any provisions herein or for any other reason, or no reason, in our sole discretion, with or without notice. If we suspend access or terminate your Account, we reserve the right to permanently destroy Your Content.
These Terms and the relationship between the parties shall be governed by the laws of the State of Delaware without regard to its conflict of law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. In order to expedite and control the cost of disputes, you and SwitchSafe agree that any legal or equitable claim arising out of or relating in any way to your use of the Services or these Terms, and the formation, validity, enforceability, scope, or applicability of these Terms, including this section (referred to as a “Claim”) will be resolved as provided herein.
We will first try to resolve any Claim informally. Accordingly, except for Claims described in “Exceptions” below, neither of us may start a formal proceeding for at least 30 days after one of us notifies the other of a Claim in writing. Notice of the Claim will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You will send your notice by email to firstname.lastname@example.org AND to SwitchSafe, Inc., 8387 E. Twisted Leaf Drive, Gold Canyon, AZ 85118. We will send your notice by email to the email address associated with your Account.
Except as provided in the “Exceptions” section below, if we cannot resolve a Claim informally, any Claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. The arbitration will be conducted under the rules of JAMS that are in effect at the time the arbitration is initiated (referred to as the “JAMS Rules”) and under the rules set forth in these Terms. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in these Terms will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state’s law.
The arbitration will be held at a location in your home area unless you and we both agree to another location or telephonic arbitration. To initiate an arbitration proceeding, you or we must do the following things:
- Write a Demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. A copy of a Demand for Arbitration is available at www.jamsadr.com.
- Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS 500 North State College Blvd., Suite 600, Orange, CA 92868 (1-800-352-5267).
- Send one copy of the demand for arbitration to SwitchSafe, Inc., 8387 E. Twisted Leaf Drive, Gold Canyon, AZ 85118.
In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. Neither you nor we shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you and we agree that the JAMS Class Action Procedures do not apply to our arbitration. A court may sever any portion of this Dispute Resolution/Arbitration section that it finds to be unenforceable, except for the prohibition on class, representative and private attorney general arbitration.
Notwithstanding the foregoing, the notice and 30-day negotiation period required by this section shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Service, including disputes involving a violation of the Communications Act of 1934, 47 U.S.C. § 605, or the Digital Millennium Copyright Act, 17 U.S.C. § 1201, or the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, or any other statement or law governing theft of service, may be decided only by a court of competent jurisdiction. You may also assert an individual action in small claims court in lieu of arbitration.
User Right to Opt-Out
You have the right to opt-out and not be bound by the binding arbitration requirement by sending written notice of your decision to opt-out to the email address email@example.com AND by U.S. Mail to SwitchSafe, Inc., 8387 E. Twisted Leaf Drive, Gold Canyon, AZ 85118. The notice must be sent within the later of 30 days of November 15, 2016 or your first use of the Service, whichever is later. If you opt-out of the binding arbitration requirement, SwitchSafe also will not be bound by the requirement.
We may assign these Terms, in whole or in part, without your prior consent; however, you may not assign or transfer these Terms. We may also assign or delegate certain of our rights and responsibilities hereunder to independent contractors or other third parties.
These Terms represents the sole and exclusive agreement between you and SwitchSafe regarding the Site and the Service and merges and supersedes all previous and contemporaneous written or oral agreements and understandings regarding the subject matter hereof. If a court of competent jurisdiction deems any provision unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force and effect.
These Terms are effective November 15, 2016.