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These Terms and Conditions were last modified on May 13, 2024

By accessing or using any part of our Service, you acknowledge and agree that you have read and understood these Terms and Conditions and our Privacy Policy (collectively, the “Agreement”) and you agree to be bound by the Agreement in full. If you do not agree to the Agreement, please do not access, use or download materials from the Service and you should leave the Service immediately. Unless otherwise indicated, the Agreement applies equally to all visitors, Registered Users, Members, and others who access or use the Service (referred to herein collectively as “users” or “you”). Unless otherwise defined, capitalized terms used herein have the same meaning as set forth in the Privacy Policy. 

Swan Lake Spiritual (“SWS”, “we”, “our” or “us”) owns and operates the website located at https://www.swanlakespiritual.com/ together with any mobile version (collectively, the “Website”) together with the various products and services offered through the Website, including readings, channeling, events, circles, retreats and any other service listed (collectively, the “Service(s)”). The Services are provided for informational and entertainment purposes only. You are solely and entirely in control of your own life and your own ability to transform your life and we do not promise or guarantee any results or outcomes arising from your participation in or your access or use of any part of the Services. 

We reserve the right to modify or discontinue the Services (or any portion of the Services), temporarily or permanently, with or without notice to you, and are not obligated to support or update the Service. YOU AGREE THAT SWS SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY IN THE EVENT THAT WE EXERCISE OUR RIGHT TO MODIFY OR DISCONTINUE THE SERVICE (OR ANY PORTION OF THE SERVICE). Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to these Terms.

BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THE MOST RECENT VERSION OF THE TERMS. We may change these Terms at any time. Please review the Terms each time you visit the Service. If you object to any amendments, please stop using the Service, otherwise your continued use will be taken as your consent to such amendments.

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

1.0 YOUR USE OF OUR SERVICE

1.1 License. 

These Terms govern the access or use by you of the Service. Subject to your compliance with these Terms, and any additional terms that may apply to a specific product or service, SWS grants you a limited, non-transferable, non-exclusive, revocable right to access and use the Service solely for your personal, non-commercial use.  For greater certainty, SWS does not grant you or any other party any right, title or interest in the Service. We reserve all rights not expressly granted to you under these Terms. 

1.2 Types of Users and Access 

There are various types of users of the Service. 

  1. Visitors may have limits on their access to the Service and the type of content they can view and interact with. 

  2. Registered Users have provided certain personal and/or financial information and have registered an account which allows them to book a service or make a purchase through the website located at https://swanlakespiritual.com. 

  3. Member(s) have provided certain personal and financial information and have purchased a subscription to the website which grants them access to live course access, course content and materials and other information and materials not otherwise available to other users.  Registering as a Member includes access for one (1) person. Upon registration, you will create and receive a username, password, and member profile for use in the private member section of the Service. If you would like to take a course along with another person or collaborator, you will need to each purchase the course individually.

  4. Subscription Member(s) have provided certain personal and financial information and have purchased a subscription to the website which grants them access to additional content, various meditations, new and full moon readings, monthly theme and mystical reading videos, major event call recordings, access to the private Vancouver Island Mediums Facebook community and access to bonus content. Registering as a Subscription Member includes access for (1) person. Upon registration, you will create and receive one username, password and member profile for use. If you would like to access the subscription along with another person or collaborator, you each need to individually purchase a subscription.  

1.3 Authorization. 

All users hereby warrant and represent that:

  1. you are at least 18 years of age or the legal age of majority in your jurisdiction of residence; 

  2. any information that you provide to us, including any personal or financial information provided as part of the creation of an account shall be accurate, current, and complete

  3. you shall not falsify your identity or impersonate any other person, or provide any personal or financial information of any other person, including as part of the creation of any service-specific account;

  4. you shall not use the Service for any unlawful, deceptive, misleading, fraudulent, or abusive purpose;

  5. you have the authority to enter into these Terms; and 

  6. you will comply with all Applicable Law when using the Service and you will use the Service only for lawful purposes. As used in these Terms, “Applicable Law” means all domestic or foreign federal, provincial, state, municipal or local laws, common law, rules, statutes, regulations, by-laws, ordinances, policies, directives or orders of any government, court, administrative or regulatory agency, commission, body, board or other government authority.

1.4 Restrictions.

By accessing or using the Service or any portion thereof, you agree that except as expressly permitted under these Terms, you shall not and shall not permit others to:

  • Modify, copy, reproduce, republish, upload, post, transmit, rent, lease, lend, loan, translate, sell, distribute, redistribute, sublicense, exploit or create derivative works of the Service or any portion thereof in any manner or medium, or make the Service available, including over a network where it could be used by multiple devices at the same time. You may, however, from time to time, be permitted to download and/or print one (1) copy of individual pages from the various Services for your personal, non-commercial use, provided that you keep intact all copyright, trademark, and other proprietary notices.

  • copy, collect, store, scrape, frame, reorganize, manipulate, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Website or the Service, any updates, or any portion thereof, including mirroring or framing any portion of the Service; 

  • modify, adapt, gain unauthorized access to, or otherwise “hack” the Service or modify any website so as to falsely imply that it is associated with SWS or the Service; 

  • upload or otherwise transmit files that contain a virus or corrupted data;

  • engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by SWS in its sole and absolute discretion, may harm us or users of the Service or expose them or us to liability; 

  • use any robot, spider or other automatic device, process or means to access the Service;

  • upload, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or other form of solicitation;

  • take any action that imposes an unreasonable or disproportionately large load on our infrastructure;  

  • remove any copyright, trademark or other proprietary notices from any portion of the Service; or

  • cause nuisance, annoyance, inconvenience or property damage while using the Service.

  • use the Service to violate the legal rights (including the rights of publicity, privacy, copyright, patent, trademark, trade secret or other intellectual property rights) of SWS, any third party or any other user or to violate the laws of any jurisdiction;

In the event of your breach or suspected breach of any of any of the terms set out in these Terms, we may at any time suspend or revoke your right to use the Service, at our sole and absolute discretion, without notice to you. Further, we will be entitled to, among other things, seek injunctive relief to prohibit such violations.

2.0 VOID WHERE PROHIBITED BY LAW

2.1 You may not access or use the Service if you are located in a jurisdiction where it is forbidden by law to do so. By using this Service you are explicitly agreeing that you have verified that your use of this Service is permitted under Applicable Law. 

3.0 CREATION AND MAINTENANCE OF ACCOUNTS

3.1. In order to become a Registered User, a Member or a Subscription Member, you must create and maintain an active personal user account. You must be at least 18 years of age or the age of legal majority in your jurisdiction to create an account.

3.2. You will be required to submit certain personal information in order to create an account, such as your first and last name, street address, email address and phone number. You will also be required to input your payment information (e.g., credit card details or PayPal account information) to use the Service. Please see our Privacy Policy for further details on how your financial information is collected, used and disclosed.  

3.3. You must keep your account information up to date and accurate at all times. You are responsible for all activity that occurs under your account. You agree to maintain the secrecy and security of your account information at all times. We recommend you select a secure password that is different from the password you use for other websites. You may possess only one account for accessing the Service(s) and you may not allow others to use your account(s). You will promptly notify us if you become aware of any unauthorized access or use of your account.

4.0 INTELLECTUAL PROPERTY RIGHTS

4.1 You acknowledge and agree that the Service, including all underlying technology and intellectual property rights embodied therein, contains proprietary Content (as defined below) that is solely and exclusively owned by SWS and/or its licensors and no license or any other right is granted to any such underlying technology or intellectual property. 

4.2 All materials, including any text, live course content, audio, video, images, illustrations, designs, icons, photographs, information, data, software, programs and other materials that are part of the Website or accessible via the Service (collectively, the “Content”) is owned, controlled or licensed by SWS or its licensors and is protected by Canadian and international copyright, trademark and other applicable intellectual property laws. The Content is provided on an as-is and as-available basis for informational purposes only and is subject to change without notice.

4.3 You agree that you shall not use the Content in any way that would violate these Terms. The use of the Content, except as permitted in these Terms, is strictly prohibited and infringes on the intellectual property rights of SWS and others and may subject you to civil and criminal penalties, including possible monetary damages for copyright and other infringement. Duplicating, sharing or uploading Content files to sharing sites is considered stealing, and SWS will prosecute such misconduct to the fullest extent permitted by law. To be clear: please be aware that you may not create derivative works, resource guides, marketing or business materials, source material, intellectual property, websites, blogs, web content, or any other works that reference SWS, Dawn Zapp herself, the, or the Content, or infringe on any of our intellectual property in any way. Any material that you create should be focused on your business, not ours. 

4.4 If you provide feedback or suggestions regarding or relating to the Service (collectively, “Feedback”) we are free to fully exploit such Feedback without obligation or compensation to you and such Feedback will not be held in confidence. 

4.5 SWS and any logos and designs are trademarks, service marks or trade dress (collectively the “SWS Marks”) are common law trademarks or registered trademarks of SWS and may not be used in connection with any product or service that is not offered by us or in any manner that is likely to cause confusion amongst consumers. You are granted no right or license with respect to any of SWS Marks. All other trademarks and service marks that appear on the Website or via the Service that are not the SWS Marks and that are not owned by SWS are the property of their respective owners (the “Third Party Marks”). All such Third Party Marks are used under license from their respective owners. 

4.6 Nothing in this Agreement grants you any right, title or interest in any intellectual property of SWS or its licensors, including without limitation the SWS Marks or the Third Party Marks, and any and all uses of such intellectual property shall be subject to approval by the applicable rights holder(s). Without limiting the generality of the foregoing, access to this Website or the Service does not confer and shall not be considered as conferring upon anyone any license under any of SWS or any third-party’s intellectual property rights. SWS reserves all rights not expressly granted herein.

5.0 PRIVACY AND CONFIDENTIALITY

5.1 Privacy. The Service is subject to SWS’s Privacy Policy. SWS does not knowingly collect personal information from children under the age of 13 and does not wish to do so. SWS reserves the right to request proof of age so that it can verify that minors under the age of 13 are not using the Service(s) or Website(s). We respect your privacy and must insist that you respect the privacy of other people.

5.2 Confidentiality. While participating in the Service, you may have access to certain information that is confidential and proprietary to SWS. As used in these Terms, “Confidential Information” includes any data or information disclosed, provided by or made available by SWS to you, either directly or indirectly, in writing or orally. You agree not to use or disclose any Confidential Information except as expressly permitted by these Terms. You may only disclose confidential information if required by Applicable Law, so long as you first notify SWS of any such requirement and provide SWS with sufficient time and opportunity to take protective action. You acknowledge that a breach of this section could cause irreparable harm to SWS and, therefore, in addition to any other remedies which may be available to SWS, SWS shall also have the right to seek immediate injunctive relief. 

6.0 THIRD-PARTY MATERIALS AND WEBSITES

SWS may provide links to third-party materials and websites and establish a Facebook group as a convenience to you. These third party sites are not owned or controlled by SWS and you access and use these websites or online services solely at your own risk. These third-party materials and websites are not part of the Service they may be either withdrawn or terminated at any time without any liability on the part of SWS. You agree that you will be responsible for all payment and other obligations associated with your use of any and all third-party materials and websites. In addition, you agree that SWS is not responsible for examining and evaluating the content and accuracy of any third-party materials and websites, and SWS does not warrant and will not have any liability or responsibility for any third-party materials or websites or for any other materials, products, or services of third-parties. You further agree that you will not use any third-party materials and websites in a manner that would infringe or violate the rights of any other party and that SWS will not be liable for your improper use of third-party materials and websites. We encourage you to be aware when you leave the Service and to read the terms and conditions of use for each other website or online service that you visit.

If you would like to link to our Website or any pages related to any of our Services, you must first obtain our express written permission by emailing us at swanlakespiritual@gmail.com. 

7.0 PAYMENT AND REFUND POLICY

We reserve the right to reject a booking request, membership request or any other request for any Service at any time and for any reason.

7.1 Payment Terms applicable to all Service. 

  1.  

    1. We are not responsible for any fees charged to you by your financial institution for invalid method of payment, including, but not limited to, overdraft fees, insufficient funds fees, interest charges, foreign exchange fees and cross border fees (collectively, the “Invalid Payment Fees”). In the event we are subject to any Invalid Payment Fees due to your payment method not processing, we may, in our sole and absolute discretion and in accordance with the law, charge you a fee.

    2. You agree that you will not attempt to circumvent any refund prohibitions with regard to transactions you entered on the Service. You will not dispute or otherwise seek a “chargeback” from the company whose credit card you used to enter a transaction on the Service. Should you do so, your subscription or access to other services may be cancelled, and SWS may, in its sole discretion, refuse to honor pending and future transactions made from all credit card accounts or online accounts on which such chargebacks have been made, and may prohibit all persons in whose name the credit card accounts exist, and any person who accesses any associated online account or credit card or who otherwise breaches this provision, from using the Service.

7.2 Payment Terms for services booked and purchases made through the Website. 

  1.  

    1. You may book a service or make a purchase through the Website by creating an account. We reserve the right to limit quantities available for sale or sold. To the extent permitted by law, we reserve the right at any time to reject, correct, cancel or terminate any order for any reason whatsoever. 

    2. The total price of your order will be charged to your credit card at the time of purchase. Services can be rescheduled or cancelled with 24 hours notice for a full refund. Less than 12 hours notice will result in forfeiture of any payment made.

    3. All sales of physical products are final and non-refundable (decks, journals, t-shirts, etc.).

    4. Audios (meditations) and other digital downloads will be sent to you immediately upon purchase or made available via a download link and are non-refundable. We recommend downloading this file on your computer first and transferring to other devices, as some mobile devices and tablets will not download this file type. Please note that there is a limit on the number of digital downloads that can be retained in your account so we recommend that you download the file to your personal device. 

7.3 For events and digital courses. Refund policies for digital courses and events vary. You are responsible for reviewing the policies of each course, event, or program at the time of purchase, and your purchase is an agreement to be bound to the policies.

 

When you make a purchase, you authorize us to charge the credit or debit card. Company reserves the right to cancel any order for any reason. Possible reasons for cancellation include but are not limited to the following: fraudulent or potentially fraudulent orders, incorrect pricing, non-payment, or misconduct, as outlined in the Code of Conduct above.

 

b. Refund Policy. You acknowledge that your ticket to the Magic Rose Circle or Magic Rose Retreat was purchased from Swan Lake Spiritual and is non-refundable with less than 24 hours notice of cancellation. Your ticket can be transferred to someone else provided you give at least 12 hours notice. If you provide less than 12 hours notice, no refunds, transfers or rescheduling will be permitted.

 

7.4 PROMOTIONAL CODES. 

From time to time, we may issue discounts, trials or promotional codes (collectively, “promotions”) that can be applied toward payment of certain Services. Promotions are only valid for use on the Service and are not transferable or redeemable for cash. Promotional codes cannot be combined. If the cost of your Service exceeds the applicable discounted value, we will charge your payment method on file for the outstanding cost of the Service. Additional restrictions on promotions may apply and these will be communicated to you at the time of the offer. We reserve the right to revoke, terminate, modify, cancel or deem a promotion inapplicable to you at any time. Some promotions may be subject to a limited number of redemptions and may be redeemed on an as-available, first-come-first-serve basis.

 

8.0 TERMINATION. SWS hopes all users will have a positive experience using the Service. If SWS determines or reasonably suspects that you have failed to abide by these Terms or the Agreement, SWS may, at its sole discretion, at any time and without notice to you, suspend, or terminate your account and/or your right to use the Service.  Upon termination of your Account or Subscription, you shall no longer have the right to access or use the Service and you shall not be entitled to a refund or a forgiveness of monthly payments. A suspension will be for such period as we may reasonably determine is necessary to permit the thorough investigation of the activity that resulted in the suspension. 

 

9. DISCLAIMER

SWS, its affiliates, and their respective officers, directors, employees, agents, shareholders, licensors, licensees, and suppliers, including authors, and any successors or assigns and other representatives, together with any operators of third-party websites including Mediumchat, Facebook, Instagram, Youtube (collectively the “SWS Parties”) are not responsible for any errors, inaccuracies or omissions in the Services. THE SERVICES, THE CONTENT, THE MEMBERSHIP SITES AND ANY OTHER MATERIALS PROVIDED BY US OR PROVIDED ON THROUGH THE SERVICE ARE PROVIDED FOR GENERAL INFORMATION AND ENTERTAINMENT PURPOSES ONLY AND ARE PROVIDED “AS IS” AND “AS AVAILABLE”.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SWS PARTIES EXPRESSLY DISCLAIM, AND YOU WAIVE ANY AND ALL CONDITIONS, GUARANTEES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE IN CONNECTION WITH THE PRODUCTS.

YOU EXPRESSLY AGREE THAT YOUR USE OR INABILITY TO USE THE SERVICES IS AT YOUR SOLE RISK. Under no circumstances will the SWS Parties be liable for any damage, loss, injury, obligation, claim, cost, fine, penalty, charge, contribution or fee of any kind resulting in any way from: (a) your use of the material or information provided on or through the Service; (b) any errors in, or omissions from, the information found on or through the Service; or (c) your use of or reliance on the materials or information found on or through the Service or any conclusions you draw from it.

By purchasing access to course material and classes you accept, agree, and understand that you are fully responsible for your progress and results from your participation and that we offer no representations, conditions, warranties, or guarantees, express or implied, verbally or in writing, regarding your ability to transform your life into something greater than its current status, or results or outcomes of any kind. You alone are responsible for your actions and results in life and business which are dependent on personal factors including, but not necessarily limited to, knowledge, ability, dedication, commitment, mental stability, to name just a few. You also understand that any testimonials or endorsements by our customers or audience represented on our programs, websites, content, landing pages, sales pages, or offerings have not been scientifically evaluated by us and the results experienced by individuals may vary significantly. Any statements outlined on our websites, programs, Content, and offerings are simply our opinion and thus are not guarantees or promises of transformation and a better life.

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL THE SWS PARTIES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM THE SERVICES, THE MEMBERSHIP SITES OR THE CONTENT, UNDER THIS AGREEMENT OR IN CONNECTION WITH THEIR PERFORMANCE OR BREACH, OR IN CONNECTION WITH ANY WARRANTIES HEREUNDER, OR IN CONNECTION WITH THE SERVICE, INCLUDING FOR THEIR NEGLIGENCE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS OR SAVINGS OR ANTICIPATED PROFITS OR SAVINGS, DATA, OPPORTUNITY, REPUTATION, GOODWILL OR BUSINESS, EVEN IF THE SWS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

THE SWS PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU MAY INCUR, OR FOR ANY OTHER UNDESIRABLE CONSEQUENCES, ARISING OUT OF OR RESULTING FROM:  (1) ANY SUSPENSION OR DISRUPTION OF THE SERVICE, INCLUDING WHERE SUCH SUSPENSION OR DISRUPTION RESULTS FROM SWS’S NEGLIGENCE, (2) ANY ERRORS, MISTAKES, OR INACCURACIES IN THE CONTENT, (3) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (4) UNAUTHORIZED ACCESS TO OR USE OF THE SWS PARTIES’ SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN, (5) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (6) INADEQUATE OR FAULTY HARDWARE OPERATING THE SERVICE; (7) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD-PARTY, (8) USER CONTENT, THIRD-PARTY WEBSITES OR APPS; (9) ERRORS OR OMISSIONS IN ANY CONTENT; OR (10) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT WHEREIN SUCH CONTENT OR ADVERTISEMENT IS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE SWS PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

THE SWS PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU OR ANY OTHER PERSON MAY INCUR, OR FOR ANY OTHER UNDESIRABLE CONSEQUENCES, RESULTING FROM YOUR BREACH OF YOUR WARRANTIES OR OTHER OBLIGATIONS UNDER THESE TERMS INCLUDING, WITHOUT LIMITATION, THE OBLIGATION TO AVOID SHARING YOUR ACCOUNT INFORMATION WITH ANY OTHER PERSON. 

THE SWS PARTIES’ MAXIMUM AGGREGATE LIABILITY FOR ANY SINGLE EVENT (OR A SERIES OF RELATED EVENTS) GIVING RISE TO A CLAIM IN CONNECTION WITH THESE TOU OR IN RELATION TO THE SERVICE, EITHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION OR NEGLIGENCE WILL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SWS FOR THE SERVICE, INFORMATION OR PRODUCT ON WHICH SUCH CAUSE OF ACTION IS BASED.

Any claims relating to use of the Service must be bought within one (1) year from the date the cause of action arose. Claims brought after such period are VOID. The Service is controlled and offered by SWS from its facilities in Canada. Those who access or use the Service do so at their own volition and are responsible for compliance with local and all other applicable laws, restrictions, and regulations.  

11. INDEMNIFICATION

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE SWS PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSE, AND ATTORNEY’S FEES ARISING TO ANY OF THE SWS PARTIES AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE SWS PARTIES IN CONNECTION WITH: (1) YOUR USE OF, ACCESS TO, OR MISUSE OF THE SERVICE; (2) YOUR BREACH OF ANY OF THESE TERMS OR OF THE AGREEMENT; (3) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; (4) ANY CLAIM THAT ANY OF YOUR USER SUBMISSIONS CAUSED DAMAGE TO AN INDEMNIFIED PARTY OR A THIRD-PARTY; (5) ANY TRANSACTION YOU CONDUCT AS A RESULT OF THE CONTACT FACILITATED BY THE SERVICE; (6) ANY ACTIVITY ON OR THROUGH YOUR ACCOUNT; OR (7) ANY ACTIVITY USING YOUR EMAIL ADDRESS BY YOU OR ANY OTHER PERSON ACCESSING THE SERVICE USING YOUR ACCOUNT OR YOUR EMAIL ADDRESS.

IF THE SWS PARTIES TAKE ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THESE TERMS, THE SWS PARTIES WILL BE ENTITLED TO RECOVER FROM YOU, AND YOU AGREE TO PAY, ALL REASONABLE ATTORNEYS’ FEES AND COSTS OF SUCH ACTION, IN ADDITION TO ANY OTHER RELIEF GRANTED TO SWS. 

12. ADDITIONAL TERMS AND CONDITIONS

12.1 GOVERNING LAW. 

  1. These Terms and your use of the Service are governed by, construed and enforced in accordance with the applicable laws of the Province of British Columbia and the Federal Laws of Canada without regard to conflict of laws principles. Any cause of action brought to enforce these Terms, the Agreement, or in connection with any matters related to the Service shall be brought only before the Supreme Court of Canada, and you hereby irrevocably consent and attorn to the exclusive jurisdiction of that Court. 

12.2   NON-DISPARAGEMENT. You agree that you will not engage in any conduct or communications with a third party, public or private, designed to disparage SWS, or Dawn Zapp, including, but not limited to, any remark, comment, message, information, declaration, campaign, communication, or other statement of any kind, whether verbal, in writing, electronically transferred, or otherwise, that might reasonably be construed to be derogatory, defamatory, libelous, or slander.

12.3 BINDING EFFECT. This Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators, and permitted assigns of the parties. You have no right to assign this Agreement, by operation of law or otherwise.

12.4 BINDING ARBITRATION. To the extent permitted by Applicable Law, in the event of a dispute arising under or relating to this Agreement or the Program (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Commercial Arbitration Act. Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in Canada. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth herein, nothing in this Agreement will prevent SWS from seeking injunctive relief in any court of competent jurisdiction as necessary to protect its proprietary interests.

12.5 CLASS ACTION WAIVER. You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

12.6 EQUITABLE RELIEF. You acknowledge and agree that in the event of a breach or threatened violation of SWS’s intellectual property rights and confidential and proprietary information by you, SWS will suffer irreparable harm and will therefore be entitled to seek injunctive relief to enforce this Agreement. SWS may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect its rights and property pending the outcome of the arbitration referenced above. 

12.7 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and agreement of the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings, inducements, or conditions, express or implied, written, or oral, between the parties.

12.8 NO WAIVER. The failure of SWS to insist on the performance of any obligation hereunder shall not be deemed to be a waiver of such obligation. Waiver of any breach of any provision shall not be deemed to be a waiver of any other breach of such provision or any other provision.

12.9 Headings. The headings and subheadings herein are provided for convenience of reference only and are not to be used in construing these Terms or any provision thereof.

12.10 No Assignment. These Terms are not assignable, transferable or sub-licensable by you except with our prior written consent. We may assign, transfer or convey these Terms to a third party without notice to you.

12.11 Severability. If a court of competent jurisdiction finds that any provision of these Terms of Use is invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid, or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms.

12.12 Survival. Any provisions of this Agreement, the performance of which by either or both parties, or by their sense and context, are intended to survive, shall survive the completion, expiration, termination or cancellation of this Agreement.

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