|TERMS OF SERVICE|
Terms of Service
By using Swan's Web sites (defined to include all properties (mobile, Web or otherwise) owned and operated by Swan), related data, and/or related services (collectively, "Services"), you agree to be bound by the following terms of service, as updated from time to time ("Terms of Service").
Unless you are a real estate professional acting in your professional capacity, you agree to use the Services for your personal use, and your commercial use is limited to transactions done on your own behalf. The commercial use of real estate professionals is limited to providing information to consumers via the Services or, where authorized, taking actions on behalf of a consumer client (e.g., post a property for rent). Subject to the restrictions set forth in the following paragraphs, you may copy information from the Services only as necessary for your personal use to view, save, print, fax and/or e-mail such information. You agree otherwise not to reproduce, modify, distribute, display or otherwise provide access to, create derivative works from, decompile, disassemble or reverse engineer any portion of the Services. In addition, you agree not to provide/post/authorize a link to any of the Services (including but not limited to your agent profile page) from a third party website that is not a real estate related website owned or operated by a real estate or lending professional or institution.
Restrictions and Additional Terms.
You agree not to remove or modify any copyright or other intellectual property notices that appear in the Services. You will not use the Services for resale, service bureau, time-sharing or other similar purposes. Further:
You agree not to use the Services in any way that is unlawful, or harms Swan, its service providers, suppliers or any other user. You agree not to use the Services in any way that breaches the Good Neighbor Policy, the Listing Quality Policy, the Video Walkthrough Guidelines or any other policy or notice on the Services. You agree not to distribute or post spam, chain letters, pyramid schemes, or similar communications through the Services. You agree not to impersonate another person or misrepresent your affiliation with another person or entity. Except as expressly stated herein, these terms of service do not provide you a license to use, reproduce, distribute, display or provide access to any portion of the Services on third-party Web sites or otherwise. Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services.
Automated queries (including screen and database scraping, spiders, robots, crawlers and any other automated activity with the purpose of obtaining information from the Services) are strictly prohibited on the Services, unless you have received express written permission from Swan. As a limited exception, publicly available search engines and similar Internet navigation tools ("Search Engines") may query the Services and provide an index with links to the Services' Web pages, only to the extent such unlicensed "fair use" is allowed by applicable copyright law. Search Engines are not permitted to query or search information protected by a security verification system ("captcha") which limits access to human users.
(i) You may access the Services via Web browsing devices such as a personal computer, PDA, or Web-enabled phone, but you may not use the NAVTEQ map data with any products, systems, or applications which are installed or otherwise connected to or in communication with vehicles and which are capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management or similar applications; or use the NAVTEQ map data with or for devices that contain a resident geographic database.
(ii) If any map data provided by NAVTEQ is being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, such data is a "commercial item" as that term is defined at 48 C.F.R. ("FAR") 2.101, is licensed in accordance with these terms of service, and each copy of such delivered or otherwise furnished shall be marked and embedded as appropriate with the following "Notice of Use," and shall be treated in accordance with such Notice:
Notice of Use CONTRACTOR (MANUFACTURER/ SUPPLIER) NAME: NAVTEQ CONTRACTOR (MANUFACTURER/SUPPLIER) ADDRESS: 222 Merchandise Mart Plaza, Suite 900 Chicago, Illinois 60654 These NAVTEQ data are commercial items as defined in FAR 2.101 and are subject to the terms of service, under which this data was provided. ©2015 NAVTEQ All rights reserved.
If the contracting officer, federal government agency, or any federal official refuses to use the legend provided herein, the contracting officer, federal government agency, or any federal official must notify NAVTEQ prior to seeking additional or alternative rights in the NAVTEQ data. Windows Live Virtual Earth. Windows Live Virtual Earth imagery is supplied by Microsoft Corporation, and use is subject to the Microsoft MapPoint terms of service, located at http://www.microsoft.com/maps/assets/docs/terms.aspx.
Some of the Services implement the Google Maps web mapping service. Your use of Google Maps is subject to Google's terms of service, located at http://www.google.com/intl/en_us/help/terms_maps.html .
Materials You Provide; Account Use; Privacy; Third Party Web Sites.
For materials you post or otherwise provide to Swan in connection with the Services (your "Submission"), you grant Swan an irrevocable, perpetual, royalty-free worldwide license to (a) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, prepare derivative works of or incorporate into other works, and translate your Submission, in connection with the Services or in any other media, and (b) sublicense these rights, to the maximum extent permitted by applicable law. Swan will not pay you for your Submission or to exercise any rights related to your Submission set forth in the preceding sentence. Swan may remove or modify your Submission at any time. For each Submission, you agree to provide accurate and complete information and represent that you have all rights necessary to grant Swan the rights in this paragraph, that Swan’s use of the Submission will not infringe any third party rights and that the Submission complies with Section 2(a) above. You are solely responsible for all Submissions made through your user account(s) on the Services or that you otherwise make available through the Services.
When a user attaches an agent to their account, they are giving expressed permission for that agent to act with all the power of a real estate agent on their behalf. This includes collecting data on the landlord and associated properties, which includes but is not limited to property and landlord details, images, locations, history and any other item an agent sees fit to the end of marketing and securing a tenant for the landlord. An agent is granted an exclusive right to post listing on behalf of the landlord. Any new listing is bound to an agent until a time that a property is leased through Swan's system, after which a landlord can remove the agents access to that property at any time. Agents are granted the rights in perpetuity to retain, for their own records, any leases drafted by them on behalf of a landlord.
Swan's business is primarily funded through transaction fees. You understand and agree that the Services may include transaction fees, and that these are necessary to support the Services. All fees are charged when a transaction has been accepted by our third party payment processor and split between payee and Swan in accordance with our fee schedule or otherwise as 3.75% for card charges and $5.00 for bank charges on any transaction through Swan's payment system. All charges, less fees, are direct deposited to a agent or landlord's attached bank information. All financial information is provided solely by the user and Swan makes no guarantees to its accuracy or legitimacy.
Payment processing services for users on Swan are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a user on Swan, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Swan enabling payment processing services through Stripe, you agree to provide Swan accurate and complete information about you and your business, and you authorize Swan to share it and transaction information related to your use of the payment processing services provided by Stripe.
It's understood that all documents exchanged or created via Swan services are subject to any and all applicable local, state and federal laws. Swan at no time creates any terms of lease or otherwise, but acts as a way of organizing user supplied information and compiling that information into a standardized form. As a convenience to users Swan maintains document templates to expedite the process of document drafting. Although Swan makes great attempts to verify and qualify all language in document templates, and although a Swan lease can be legally binding, Swan does not offer any guarantees as to any document created on the Swan platform to be legally binding. All statutory laws that are in disagreement with Swan document templates will supersede agreements based on Swan document templates. Swan uses lease terms entered as a means of accurately charging tenants rent payments on the time scales and conditions set forth in an agreement. Swan has no authority and otherwise will make no attempt to enforce any lease terms. At any time a user may terminate a Swan lease, which may or may not have valid reason to terminate such a lease agreement. Depending on the conditions in which a lease is terminated on the Swan platform a landlord and tenant may still be in a binding agreement whether or not it is maintained through Swan's system. Swan will make no attempt to verify the status of any lease drafted through our system at any time, rather any user should consult their own council to ascertain the status of any lease.
First month payments are calculated using the price per month of the lease, divided by the number of days in the month the lease starts, multiplied by the number of days before the date when the next payment is due. We round to the nearest dollar for prorated first month rent calculations.
Closing Costs and Agent Fees.
All costs associated with closing on a lease created and executed through Swan are charged at acceptance and digital signing of lease terms. Charges are itemized and calculated through our Prorate section of this notification and otherwise by simple arithmetic. If an agent fee is present a signee is charged twice: Once for the primary lease closing costs less agent fee, and second for the agent fee itself. All charges are equal to the total amount specified in the total presented at lease signing. Transaction fees are charged before transfer to the landlord or agent attached bank accounts. All fees are in the amount specified by the fees section of this terms of service, and outlined in any transaction or invoice available to Swan users.
All payments made via our Service are non-refundable through our platform. You may request to reconcile any disputed charges directly with your landlord or agent. Although a landlord may chose to refund or reimburse a tenant on rent or deposits paid all transaction fees are final once a payment has been made.
Users have the option to be notified of transactions through Swan in email, text and other means. Notifications are not guaranteed to be delivered and any user supplied contact information is subject to the users verification on accuracy. Swan uses third party information for sending text message notifications and although we will strive to maintain accurate methods for all major carriers, we cannot guarantee that information to stay accurate as third party companies change access, policies or other details that could make notifications fail.
Service and Utility Information.
Swan provides the convenience of attaching contact information of local utilities, and service providers for properties leased through Swan's system. All information is subject to user input verification. In regards to utility and service companies Swan acts only as a means to contact them as specified by the contact information included by a landlord or agent. Swan offers no claim or guarantee on service quality or legitimacy. Any engagement with those third parties are outside the scope of Swan and Swan will be held harmless in any resulting actions. Any disputes that arise out of contacting a service or utility will remain between landlord, agent, tenant, and those third parties.
Lease Termination And Cancellation.
At any time a user may terminate the lease on the Swan platform. Although terminating a lease on the Swan platform stops all activity from our system calculating, invoicing and notifying of lease terms, that lease, depending on federal, state and local laws may still be in effect and enforceable.
Calculation Of Late Fees
All late fees of payments of rent are calculated as such: A day of the month is specified by the user at time of lease creation. That due date is the absolute date before rent is past due and days late are calculated following the specified due date. A grace period entered into at lease creation will be the period in which late fees are automatically waived until such date that the grace period is surpassed. This time period is known as "past due". After a grace period has elapsed the system retroactively charges a late fee per day, as specified by the user at lease creation, until such time that the current invoice is paid in full. The late fee will continue to accrue and an additional rent period will be charged on the next due date. If a user fails to pay the bill current before 60 days the system will automatically terminate the lease on the Swan system. A landlord has the exclusive ability to waive any late charges. Rent charged due to another rental period entering into an invoice cannot be waived.
A landlord can accept any alternate form of payment outside of the Swan platform and enter those payments into the invoicing system as either cash or check. Those payments entered by a landlord's account will reflect as paid on an invoice. No fees apply to payments made outside of Swan's online payment system.
The Role of Swan.
Swan does not act as a real estate agent for you or any other user. Swan does not sell, buy, or negotiate the purchase, sale, or exchange of real property. Further, Swan does not lease or rent, offer to lease or rent, or negotiate the lease of real property.
Additional Terms for Use of Certain Services.
All verified listings are enabled with Swan Pay payment services (integrated online payment processing). It is acknowledged that Swan transaction fees are crucial to the sustainability of the Swan platform and that Swan Pay will be available as a payment option on all properties leased through the Swan system. All verified listings will contain a feature item on the listing page that explicitly makes known the availability of Swan Pay to other users.
The Services may include software for use in connection with the Services. If such software is accompanied by an end user license agreement ("EULA"), the terms of the EULA will govern your use of the software. If such software is not accompanied by a EULA, then Swan grants to you a non-exclusive, revocable, personal, non-transferable license to use such software solely in connection with the Services and in accordance with these terms of service (for example, Sections 1, 2, 11, and 12).
Linked Materials and Third-Party Materials.
The Services include links to third-party products, services and Web sites, as well as materials provided by third parties. Swan does not endorse, and takes no responsibility for such products, services, Web sites, and materials. You understand that Swan has no obligation to, and generally does not, approve or monitor materials provided by third parties through the Services. Your dealings with any third party arising in connection with the Services are solely between you and such third party, and Swan takes no responsibility for any damages or costs of any type arising out of or in any way connected with your dealings with these third parties.
Claims of Copyright Infringement.
Swan respects the intellectual property rights of others, and asks that everyone using the Services do the same. Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify Swan's copyright agent in accordance with Title 17, United States Code, Section 512(c)(2), by providing the following information: Identification of the copyrighted work that you claim has been infringed; Identification of the material that you claim is infringing and needs to be removed, including a description of where it is located on the Services so that the copyright agent can locate it; Your address, telephone number, and, if available, e-mail address, so that the copyright agent may contact you about your complaint; and A signed statement that the above information is accurate; that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner's behalf in this situation.
Notices of copyright infringement claims should be sent as follows:
If relating to content on Swan, by e-mail: firstname.lastname@example.org
If you give notice of copyright infringement by text e-mail, we may begin investigating the alleged copyright infringement; however, we must receive your signed statement by mail or as an attachment to your e-mail before we are required to take any action.
Swan does not assert copyright or grant any rights to the underlying images or descriptions of real estate listings provided through the Services. Any use of these images and descriptions is subject to the copyright owner's permission and/or the requirements of applicable law.
SWAN PROVIDES THE SERVICES "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWAN AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. SWAN AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE.
LIABILITY LIMITATION; EXCLUSIVE REMEDY.
IN NO EVENT WILL SWAN OR ANY SUPPLIER BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THESE TERMS OF SERVICE OR YOUR USE OF THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER THIS PARAGRAPH IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY SET FORTH BELOW AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (A) BREACH OF CONTRACT, (B) BREACH OF WARRANTY, (C) NEGLIGENCE, OR (D) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS OF SERVICE, OR YOU HAVE ANY DISPUTE OR CLAIM AGAINST SWAN OR ITS SUPPLIERS WITH RESPECT TO THESE TERMS OF SERVICE OR THE SERVICES, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
Swan reserves the right to change these terms of service at any time in its sole discretion. Any changes will be effective immediately upon posting the revised version of these terms of service to Swan's properties. Your continued use of the Services after the effectiveness of such changes will constitute acceptance of and agreement to any such changes. You further waive any right you may have to receive specific notice of such changes to these terms of service. You are responsible for regularly reviewing these terms of service. Swan may alter, suspend or discontinue the Services at any time to you and/or to others, without notice.
Choice of Law; Disputes.
These terms of service are governed by the laws of the State of California, without giving effect to its conflict of laws provisions. You agree to submit to exclusive jurisdiction and venue in the state and federal courts sitting in Los Angeles County, California for any and all disputes, claims and actions arising from or in connection with the Services and/or these terms of service. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys' fees and expenses.
You agree to defend and hold Swan, its affiliates, and their respective directors, officers, employees, and agents harmless from any and all claims and demands made by any third party due to or arising out of your breach of these terms of service, your use of the Services, your violation of any law or the rights of a third party, or any Submission made through your user account on the Services or that you otherwise make available through the Services.
You release Swan, its affiliates, and their respective directors, officers, employees and agents from all liability related to any and all claims and demands you may assert against any third party arising out of the Services. If you are a California resident, you waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
You agree not to export from anywhere any part of the Services provided to you or any direct product thereof except in compliance with, and with all licenses and approvals required under, applicable export laws, rules and regulations. All Services used by the U.S. Government are provided with the commercial license rights described herein. If any part of these terms of service is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these terms of service will continue in effect. The section titles in these terms of service are solely used for the convenience of the parties and have no legal or contractual significance. Swan may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not assign these terms of service, or assign, transfer or sublicense your rights, if any, in the Service. Swan's failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. Except as expressly stated herein, these terms of service constitute the entire agreement between you and Swan with respect to the Services and supersede all prior or contemporaneous communications of any kind between you and Swan with respect to the Services. The following sections of these terms of service shall survive any termination of these terms of service: 3, 11, 12, 13, 15 through 18.
Updated March 2017