Terms
of Service
Swift Health Systems Website Terms of Service
Last Updated: 5/8/2019
Welcome, and thank you for your interest in Swift Health
Systems Inc., a California corporation with offices at 111
Academy, Ste 150, Irvine CA 92617 (“Swift,” “we,” or “us”)
and our website at www.inbrace.com, along with our related
websites, networks, and other services provided by us on
which a link to these Terms is displayed (collectively, the
“Service”). These Terms of Service are a legally binding
contract between you and Swift regarding your use of the
Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY USING THE SERVICE YOU AGREE THAT YOU HAVE READ AND
UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE,
YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND
CONDITIONS, INCLUDING SWIFT’S PRIVACY POLICY (TOGETHER,
THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO
THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE
SERVICE. YOUR USE OF THE SERVICE, AND SWIFT’S PROVISION OF
THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY SWIFT AND BY
YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes
described in Section 11, you agree that disputes arising
under these Terms will be resolved by binding, individual
arbitration, and BY ACCEPTING THESE TERMS, YOU AND SWIFT ARE
EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE
IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE
TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend
your rights under this contract (except for matters that may
be taken to small claims court). Your rights will be
determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
(See Section 11.)
- Swift Service Overview. Swift provides InBrace devices to
orthodontists for patients. Orthodontists who are Swift’s
customers can access informational materials about InBrace
devices through the Service. The Service may also, now or
in the future, allow orthodontists to submit orders and
pay for new InBrace devices. The Service is a
supplementary service provided for the convenience of
Swift’s customers of InBrace devices.
- Eligibility. By agreeing to these Terms, you represent and
warrant to us that: (a) you are at least 18 years old; (b)
you have not previously been suspended or removed from the
Service; (c) your use of the Service is in compliance with
any and all applicable laws and regulations; and (d) you
have entered into a Sales Agreement with Swift that is in
effect and has not expired or been terminated. If you are
an entity, organization, or company, the individual
accepting these Terms on your behalf represents and
warrants that they have authority to bind you to these
Terms and you agree to be bound by these Terms.
- Licenses
- Limited License. Subject to your complete and ongoing
compliance with these Terms, Swift grants you, solely
for your personal use, a limited, non-exclusive,
non-transferable, non-sublicensable, revocable license
to access and use the Service.
- License Restrictions. Except and solely to the extent
such a restriction is impermissible under applicable
law, you may not: (a) reproduce, distribute, publicly
display, or publicly perform the Service; (b) make
modifications to the Service; or (c) interfere with or
circumvent any feature of the Service, including any
security or access control mechanism. If you are
prohibited under applicable law from using the
Service, you may not use it.
- Feedback. If you choose to provide input and
suggestions regarding problems with or proposed
modifications or improvements to the Service
(“Feedback”), then you hereby grant Swift an
unrestricted, perpetual, irrevocable, non-exclusive,
fully-paid, royalty-free right to exploit the Feedback
in any manner and for any purpose, including to
improve the Service and create other products and
services.
- Ownership; Proprietary Rights. The Service is owned and
operated by Swift. The visual interfaces, graphics,
design, compilation, information, data, computer code
(including source code or object code), products,
software, services, and all other elements of the Service
(“Materials”) provided by Swift are protected by
intellectual property and other laws. All Materials
included in the Service are the property of Swift or its
third-party licensors. Except as expressly authorized by
Swift, you may not make use of the Materials. Swift
reserves all rights to the Materials not granted expressly
in these Terms.
- Trademarks. All trademarks, logos and service marks
(“Marks”) displayed on the Site are our property or
the property of other third parties. All rights are
reserved. Nothing in these Terms operates to transfer,
assign or grant any of those rights to you.
- Third-Party Websites. We assume no responsibility for
the content of any websites, ads or services linked on
our Site, or any websites from which you have accessed
our Site. Such links should not be interpreted as
endorsement by us. We will not be liable for any loss
or damage that may arise from your use of them.
- Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in
violation of any local, state, national, or
international law;
- violate, or encourage others to violate, any right of
a third party, including by infringing or
misappropriating any third party’s privacy or
intellectual property right;
- interfere with security-related features of the
Service, including by: (i) disabling or circumventing
features that prevent or limit use or copying of any
content; or (ii) reverse engineering or otherwise
attempting to discover the source code of any portion
of the Service except to the extent that the activity
is expressly permitted by applicable law;
- interfere with the operation of the Service or any
other user’s enjoyment of the Service, including by:
(i) uploading or otherwise disseminating any virus,
adware, spyware, worm, or other malicious code; or
(ii) interfering with or disrupting any network,
equipment, or server connected to or used to provide
the Service;
- perform any fraudulent activity including
impersonating any person or entity, claiming a false
affiliation, accessing any other Service account
without permission, or providing false information
when registering for or accessing the Service;
- sell or otherwise transfer the access granted under
these Terms or any right or ability to view, access,
or use the Service; or
- attempt to do any of the acts described in this
Section 5 or assist or permit any person in engaging
in any of the acts described in this Section 5.
- Modification of these Terms. We reserve the right to
change these Terms on a going-forward basis at any time.
Please check these Terms periodically for changes. In the
event that a change to these Terms materially modifies
your rights or obligations, we will make reasonable
efforts to notify you of that change. We may provide that
notice by posting on the Service, by sending an email to
any address you may have given us, or through other
mechanisms. The changed Terms will automatically take
effect 60 days after being made available through the
Service. If you do not accept the changed Terms, you may
terminate your access to and use of the Service. Your
continued use of the Service after the changed Terms have
become effective indicates that you have read, understood
and agreed to the current version of the Terms. Except as
expressly permitted in this Section 6, these Terms may be
amended only by a written agreement signed by authorized
representatives of the parties to these Terms. Disputes
arising under these Terms will be resolved in accordance
with the version of these Terms that was in effect at the
time the dispute arose.
- Termination and Modification of the Service
- Termination. If you violate any provision of these
Terms, your authorization to access the Service and
these Terms automatically terminate. In addition,
Swift may, at its sole discretion, terminate these
Terms, or suspend or terminate your access to the
Service, at any time for any reason or no reason, with
or without notice.
- Effect of Termination. Upon termination of these
Terms: (a) you will no longer be authorized to access
the Service; and (c) Sections 3.3, 4, 7.2, 8, 9, 10,
11 and 12 will survive.
- Modification of the Service. Swift reserves the right
to modify or discontinue the Service at any time
(including by limiting or discontinuing certain
features of the Service), temporarily or permanently,
without notice to you. Swift will have no liability
for any change to the Service or any suspension or
termination of your access to or use of the Service;
provided, however, that no such change, suspension or
termination will have any effect on Swift’s and your
obligations under the Sales Agreement.
- Indemnity. To the fullest extent permitted by law, you are
responsible for your use of the Service, and you will
defend and indemnify Swift and its officers, directors,
employees, consultants, affiliates, subsidiaries and
agents (together, the “Swift Entities”) from and against
every claim brought by a third party, and any related
liability, damage, loss, and expense, including reasonable
attorneys’ fees and costs, arising out of or connected
with: (a) your unauthorized use of, or misuse of, the
Service; (b) your violation of any portion of these Terms,
any representation, warranty, or agreement referenced in
these Terms, or any applicable law or regulation; (c) your
violation of any third party right, including any
intellectual property right or publicity, confidentiality,
other property, or privacy right; or (d) any dispute or
issue between you and any third party that arises from
your use of the Service. We reserve the right, at our own
expense, to assume the exclusive defense and control of
any matter otherwise subject to indemnification by you
(without limiting your indemnification obligations with
respect to that matter), and in that case, you agree to
cooperate with our defense of those claims.
- Disclaimers; No Warranties THE SERVICE AND ALL MATERIALS
AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS
IS” AND ON AN “AS AVAILABLE” BASIS. SWIFT DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT
AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND
(B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE,
OR TRADE. SWIFT DOES NOT WARRANT THAT THE SERVICE OR ANY
PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT
OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED,
SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL
COMPONENTS, AND SWIFT DOES NOT WARRANT THAT ANY OF THOSE
ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE
OR SWIFT ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE
THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY
OF THE SWIFT ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY
STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY
DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING
WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT
YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION
AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE
TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE
DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF
DATA, INCLUDING USER CONTENT. THE LIMITATIONS, EXCLUSIONS
AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST
EXTENT PERMITTED BY LAW. Swift does not disclaim any
warranty or other right that Swift is prohibited from
disclaiming under applicable law.
- Limitation of Liability TO THE FULLEST EXTENT PERMITTED BY
LAW, IN NO EVENT WILL THE SWIFT ENTITIES BE LIABLE TO YOU
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS,
GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR
RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO
ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON
THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT
(INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL
THEORY, AND WHETHER OR NOT ANY SWIFT ENTITY HAS BEEN
INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED
IN SECTION 11.4 AND TO THE FULLEST EXTENT PERMITTED BY
LAW, THE AGGREGATE LIABILITY OF THE SWIFT ENTITIES TO YOU
FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR
ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR
OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT
YOU HAVE PAID TO SWIFT FOR ACCESS TO AND USE OF THE
SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR
CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100. EACH
PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF
LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF
DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN
THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN
ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE
PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND
INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE
LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF ANY
LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes
between you and Swift in the most expedient and
cost-effective manner, and except as described in
Section 11.2, you and Swift agree that every dispute
arising in connection with these Terms will be
resolved by binding arbitration. Arbitration is less
formal than a lawsuit in court. Arbitration uses a
neutral arbitrator instead of a judge or jury, may
allow for more limited discovery than in court, and
can be subject to very limited review by courts.
Arbitrators can award the same damages and relief that
a court can award. This agreement to arbitrate
disputes includes all claims arising out of or
relating to any aspect of these Terms, whether based
in contract, tort, statute, fraud, misrepresentation,
or any other legal theory, and regardless of whether a
claim arises during or after the termination of these
Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO
THESE TERMS, YOU AND SWIFT ARE EACH WAIVING THE RIGHT
TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS
ACTION.
- Exceptions. Despite the provisions of Section 11.1,
nothing in these Terms will be deemed to waive,
preclude, or otherwise limit the right of either party
to: (a) bring an individual action in small claims
court; (b) pursue an enforcement action through the
applicable federal, state, or local agency if that
action is available; (c) seek injunctive relief in a
court of law in aid of arbitration; or (d) to file
suit in a court of law to address an intellectual
property infringement claim.
- Arbitrator. Any arbitration between you and Swift will
be settled under the Federal Arbitration Act and
administered by the American Arbitration Association
(“AAA”) under its Consumer Arbitration Rules
(collectively, “AAA Rules”) as modified by these
Terms. The AAA Rules and filing forms are available
online at www.adr.org, by calling the AAA at
1-800-778-7879, or by contacting Swift. The arbitrator
has exclusive authority to resolve any dispute
relating to the interpretation, applicability, or
enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to
seek arbitration must first send a written notice of
the dispute to the other party by certified U.S. Mail
or by Federal Express (signature required) or, only if
that other party has not provided a current physical
address, then by electronic mail (“Notice of
Arbitration”). Swift’s address for Notice is: Swift
Health Systems Inc., 111 Academy, Ste 150, Irvine CA
92617. The Notice of Arbitration must: (a) describe
the nature and basis of the claim or dispute; and (b)
set forth the specific relief sought (“Demand”). The
parties will make good faith efforts to resolve the
claim directly, but if the parties do not reach an
agreement to do so within 30 days after the Notice of
Arbitration is received, you or Swift may commence an
arbitration proceeding. All arbitration proceedings
between the parties will be confidential unless
otherwise agreed by the parties in writing. During the
arbitration, the amount of any settlement offer made
by you or Swift must not be disclosed to the
arbitrator until after the arbitrator makes a final
decision and award, if any. If the arbitrator awards
you an amount higher than the last written settlement
amount offered by Swift in settlement of the dispute
prior to the award, Swift will pay to you the higher
of: (i) the amount awarded by the arbitrator; or (ii)
$10,000.
- Fees. If you commence arbitration in accordance with
these Terms, Swift will reimburse you for your payment
of the filing fee, unless your claim is for more than
$10,000, in which case the payment of any fees will be
decided by the AAA Rules. Any arbitration hearing will
take place at a location to be agreed upon in Orange
County, California, but if the claim is for $10,000 or
less, you may choose whether the arbitration will be
conducted: (a) solely on the basis of documents
submitted to the arbitrator; (b) through a
non-appearance based telephone hearing; or (c) by an
in-person hearing as established by the AAA Rules in
the county (or parish) of your billing address. If the
arbitrator finds that either the substance of your
claim or the relief sought in the Demand is frivolous
or brought for an improper purpose (as measured by the
standards set forth in Federal Rule of Civil Procedure
11(b)), then the payment of all fees will be governed
by the AAA Rules. In that case, you agree to reimburse
Swift for all monies previously disbursed by it that
are otherwise your obligation to pay under the AAA
Rules. Regardless of the manner in which the
arbitration is conducted, the arbitrator must issue a
reasoned written decision sufficient to explain the
essential findings and conclusions on which the
decision and award, if any, are based. The arbitrator
may make rulings and resolve disputes as to the
payment and reimbursement of fees or expenses at any
time during the proceeding and upon request from
either party made within 14 days of the arbitrator’s
ruling on the merits.
- No Class Actions. YOU AND SWIFT AGREE THAT EACH MAY
BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS
INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE
PROCEEDING. Further, unless both you and Swift agree
otherwise, the arbitrator may not consolidate more
than one person’s claims and may not otherwise preside
over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Swift
makes any future change to this arbitration provision,
other than a change to Swift’s address for Notice of
Arbitration, you may reject the change by sending us
written notice within 30 days of the change to Swift’s
address for Notice of Arbitration, in which case your
access to the Service will be immediately terminated
and this arbitration provision, as in effect
immediately prior to the changes you rejected will
survive.
- Enforceability. If Section 11.6 is found to be
unenforceable or if the entirety of this Section 11 is
found to be unenforceable, then the entirety of this
Section 11 will be null and void and, in that case,
the parties agree that the exclusive jurisdiction and
venue described in Section 12.2 will govern any action
arising out of or related to these Terms.
- Miscellaneous
- General Terms. These Terms, together with the Swift
Privacy Policy, the Swift Customer Agreement between
you and Swift, if applicable, and any other agreements
expressly incorporated by reference into these Terms,
are the entire and exclusive understanding and
agreement between you and Swift regarding your use of
the Service. You may not assign or transfer these
Terms or your rights under these Terms, in whole or in
part, by operation of law or otherwise, without our
prior written consent. We may assign these Terms at
any time without notice or consent. The failure to
require performance of any provision will not affect
our right to require performance at any other time
after that, nor will a waiver by us of any breach or
default of these Terms, or any provision of these
Terms, be a waiver of any subsequent breach or default
or a waiver of the provision itself. Use of section
headers in these Terms is for convenience only and
will not have any impact on the interpretation of any
provision. Throughout these Terms the use of the word
“including” means “including but not limited to”. If
any part of these Terms is held to be invalid or
unenforceable, the unenforceable part will be given
effect to the greatest extent possible, and the
remaining parts will remain in full force and effect.
- Governing Law. These Terms are governed by the laws of
the State of California without regard to conflict of
law principles. You and Swift submit to the personal
and exclusive jurisdiction of the state courts and
federal courts located within Orange County,
California for resolution of any lawsuit or court
proceeding permitted under these Terms. We operate the
Service from our offices in California, and we make no
representation that Materials included in the Service
are appropriate or available for use in other
locations.
- Privacy Policy. Please read the Swift Privacy Policy
www.inbrace.com/privacy-policy carefully for
information relating to our collection, use, storage,
disclosure of your personal information. The Swift
Privacy Policy is incorporated by this reference into,
and made a part of, these Terms.
- Additional Terms. Your use of the Service is subject
to all additional terms, policies, rules, or
guidelines applicable to the Service or certain
features of the Service that we may post on or link to
from the Service (the “Additional Terms”). All
Additional Terms are incorporated by this reference
into, and made a part of, these Terms.
- Consent to Electronic Communications. By using the
Service, you consent to receiving certain electronic
communications from us as further described in our
Privacy Policy. Please read our Privacy Policy to
learn more about our electronic communications
practices. You agree that any notices, agreements,
disclosures, or other communications that we send to
you electronically will satisfy any legal
communication requirements, including that those
communications be in writing.
- Contact Information. The Service is offered by Swift
Health Systems Inc., located at 111 Academy, Ste 150,
Irvine CA 92617. You may contact us by sending
correspondence to that address or by emailing us at
info@myinbrace.com.
- Notice to California Residents. If you are a
California resident, under California Civil Code
Section 1789.3, you may contact the Complaint
Assistance Unit of the Division of Consumer Services
of the California Department of Consumer Affairs in
writing at 1625 N. Market Blvd., Suite S-202,
Sacramento, California 95834, or by telephone at (800)
952-5210 in order to resolve a complaint regarding the
Service or to receive further information regarding
use of the Service.
- No Support. We are under no obligation to provide
support for the Service. In instances where we may
offer support, the support will be subject to
published policies.
- International Use. The Service is intended for
visitors located within the United States. We make no
representation that the Service is appropriate or
available for use outside of the United States. Access
to the Service from countries or territories or by
individuals where such access is illegal is
prohibited.