Last updated 5th November, 2017
This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and Swingvy Sdn Bhd, a company doing business as Swingvy, and its subsidiaries and affiliates (collectively, “Swingvy”). This Agreement contains the terms and conditions that govern the use of Swingvy’s all-in-one HR platform (the “Platform”). Swingvy directly, and through its website (https://www.swingvy.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://www.swingvy.com/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
This Agreement is applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.
Swingvy’s provision of any Service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Swingvy may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
In order to receive any Service, User must be enrolled in one of the following plans (each, a “Service Plan”), which coincides with User’s Plan Selection (as defined below) or Service Plan access by (i) clicking the applicable button to indicate User’s Service Plan choice (the “Plan Selection”); (ii) clicking the applicable button to indicate User’s acceptance of this Agreement (in the event that User is already enrolled in a Service Plan); or (iii) accessing or using the Services. By taking any of the aforementioned actions, User agrees to be bound by the applicable Service Terms as of the time that such action occurs.
Standard: HRIS Service
Pro: HRIS Service and Payroll Service
If User chooses to subscribe to one or more of the following add-on services, then User agrees to be bound by the Service Terms of such add-on service(s):
Add-on Service: Employee Benefits Service
Swingvy’s provision of any Service is contingent upon User being actively enrolled in the HRIS Service.
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://www.swingvy.com/pricing, and User authorizes Swingvy to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar month or year in which User is enrolled in any Services (so, for example, if User is enrolled in a Pro Plan for a given calendar month, User would be charged for such month even if User does not run payroll in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Services for a portion of such month. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Swingvy may invoice User for any applicable, outstanding fees, and User shall pay such invoice within thirty (30) days of receipt thereof via money transfer, check, or any other payment method Swingvy may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Swingvy for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Swingvy may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Swingvy reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Swingvy is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
Swingvy currently offers several Service Plans with varying features and fee schedules, as well as add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://www.swingvy.com/pricing. User may request to change User’s Service Plan via the Platform.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month or year following the calendar month or year in which User elected to downgrade (the “Downgrade Election Month/Year/Year”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month/Year/Year. After the Downgrade Election Month/Year, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month/Year, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month or year following the Downgrade Election Month/Year and for each calendar month or year thereafter for so long as User is subscribed to the New Downgrade Plan.
To use the Platform, User must have an account with Swingvy (an “Account”). User hereby authorizes Swingvy to obtain and store User’s Account information as necessary to make the Platform available to User.
User may use the Platform only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.
User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Swingvy reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Swingvy to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Swingvy provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Swingvy. Swingvy reserves the right to prevent access to the Services if Swingvy has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Swingvy with the information required for Swingvy to perform the Services. User may furnish such information directly to Swingvy or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Swingvy that for any information that User shares with Swingvy, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Swingvy, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Swingvy, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Swingvy.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Swingvy (or otherwise made available to User by Swingvy) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Swingvy of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Swingvy.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Swingvy of any third-party notices that User may receive which could affect Swingvy’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Swingvy in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services, and, if User subscribes to the Employee Benefits Service (as defined in the Add-on Service), notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Swingvy by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Complete Payroll” or other buttons) or otherwise (e.g., verbally telling a Swingvy Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
User gives Swingvy permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Swingvy may ask for User’s name, address, date of birth, NRIC number, and other information that will allow Swingvy to identify User. Swingvy may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Swingvy to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others. Swingvy may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Swingvy is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
Through the Platform, User will be able to elect to receive services from partners of Swingvy (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Swingvy is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Swingvy to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Swingvy in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Swingvy and for Swingvy to provide it to Partners, and that Swingvy’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Swingvy to submit User’s Shared Information to a Partner, User has waived and released any Claim against Swingvy and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to third-party websites or resources. Swingvy provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Swingvy provides to User via the Services shall constitute Swingvy Content (as defined below) hereunder. Swingvy does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Swingvy a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Swingvy the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and Swingvy has the right to remove User Content from the Platform in accordance with Section 14.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Swingvy is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Swingvy’s Intellectual Property Rights
“Swingvy Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Swingvy, other than User Content. User Content and Swingvy Content shall be collectively referred to herein as “Content.” Swingvy and its licensors exclusively own all worldwide right, title, and interest in and to the Swingvy Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Swingvy IP”). User acknowledges that the Platform, Services, and Swingvy Content are protected by copyright, trademark, and other laws of Singapore, Malaysia and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Swingvy Content. This Agreement does not convey any proprietary interest in or to any Swingvy IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Swingvy Content (“Feedback”) is given entirely voluntarily and Swingvy will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Swingvy in response to any surveys Swingvy conducts, through any available technology, about User’s experience.
Subject to User’s compliance with this Agreement, Swingvy grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Swingvy Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
By providing User’s mobile phone number to Swingvy, User agrees that Swingvy may send User autodialed Short Message Service (“SMS”) or Multimedia Messaging Service (“MMS”) messages about activity in User’s Account and service updates, as well as SMS or MMS messages soliciting User’s feedback about the Services and User’s experience interacting with Swingvy’s Customer Care team. Standard message and data rates may apply. Note that Swingvy will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS and MMS messages, User should contact email@example.com.
User agrees not to take any of the following actions:
Although Swingvy is not obligated to monitor access to or use of User Content or to review or edit any User Content, Swingvy has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. Swingvy reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Swingvy, at Swingvy’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.
Swingvy has the right to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Swingvy believes could affect the Platform, Services, or Content, including violations of this Agreement. Swingvy may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
Swingvy provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Swingvy has no responsibility or liability with respect to such matter.
Swingvy has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Swingvy makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE SINGAPORE AND MALAYSIA LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
Swingvy makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to User.
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT SWINGVY IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Swingvy is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Swingvy via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, Swingvy’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for Swingvy’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND SWINGVY CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY SWINGVY. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWINGVY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, SWINGVY MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR SWINGVY CONTENT IN OR LINKED TO THE SERVICES. SWINGVY CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. SWINGVY DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR SWINGVY CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, SWINGVY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE STATE OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from Swingvy’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Swingvy reasonably believes to be User, an employee or an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Swingvy will attempt to correct the Resulting Error, but Swingvy makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Swingvy does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Swingvy will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Swingvy works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
User will indemnify and hold harmless Swingvy and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s gross negligence, fraudulent activity, or willful misconduct; (vii) Swingvy’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (viii) actions or activities that Swingvy or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Swingvy or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (ix) Swingvy’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Swingvy’s instructions with respect to the Services.
Swingvy is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Swingvy with information necessary for its provision of Services; (iv) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (v) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vi) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (vii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (viii) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (ix) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Swingvy’s instructions with respect to the Services.
NEITHER SWINGVY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR SWINGVY CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SWINGVY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL SWINGVY’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO SWINGVY FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SWINGVY AND USER.
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Swingvy or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Swingvy may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Swingvy’s foregoing termination right, Swingvy may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Swingvy has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Swingvy determines that User’s actions are likely to cause legal liability for or material negative impact to Swingvy; (iii) Swingvy believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Swingvy has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within thirty (30) days of Swingvy providing User with notice of the non-payment; or (v) while Swingvy strives to support a multitude of business and organization types, in certain unique situations, if Swingvy cannot support the payroll-related filings for User’s business or organization type, Swingvy may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Swingvy’s rights with respect to transactions which occurred before termination. Swingvy will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Swingvy’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Swingvy will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Swingvy may deny the Limited Access Rights to User, or Swingvy may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
Swingvy may modify the Agreement at any time, in Swingvy’s sole discretion. If Swingvy does so, Swingvy shall let User know either by posting the modified Agreement on the Platform or Site or through other communications. It is important that User reviews the Agreement whenever Swingvy modifies it because if User continues to use the Platform or Services after Swingvy has notified User of the modification and the modified Agreement has been posted on the Platform or Site, User is indicating to Swingvy that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Swingvy may change or discontinue all or any part of the Platform, Services, or Swingvy Content at any time and without notice, at Swingvy’s sole discretion.
This Agreement shall be interpreted and construed in accordance with the laws of Singapore and Malaysia, without regard to the conflicts of laws principles thereof.
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Swingvy has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Swingvy, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the SIAC (the “SIAC Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the SIAC, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the SIAC Rules. Arbitration hearings will be held in Singapore or any other location that is mutually agreed upon by User and Swingvy. A single arbitrator will be mutually selected by Swingvy and User and shall be (i) a practicing attorney licensed to practice law in Singapore; and (ii) selected from the arbitrators on the SIAC’s roster of commercial dispute arbitrators who have a background in payroll, insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the SIAC’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Swingvy and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the SIAC shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Swingvy. A judgment on the award may be entered and enforced in any court of competent jurisdiction.
USER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND SWINGVY ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
Swingvy is not responsible or liable for any delays or failures in performance from any cause beyond Swingvy’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Swingvy cannot guarantee that any User Content hosted on a third-party server will remain secure.
This Agreement, including all applicable Service Terms, constitutes the entire agreement between Swingvy and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without Swingvy’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. Swingvy may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Swingvy under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Swingvy’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Swingvy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
If User has any questions about the Service, this Agreement, or the Platform, User may email us at firstname.lastname@example.org, or write to us at:
Swingvy Sdn Bhd (1193914-W)
B1-2-1, Solaris Dutamas,
No.1, Jalan Dutamas 1,
50480 Kuala Lumpur, Malaysia