Swapspace Terms of Service

1. Swapspace

Swapspace provides a service to facilitate parking vehicles. The Service does this by, among other things, allowing users to indicate available parking spaces and connecting users occupying parking spaces with users looking for parking spaces. All individuals using the Service are referred to as "Users."

2. Modification to the Agreement

Swapspace reserves the right to modify the terms and conditions of this Agreement, including by changing or deleting existing terms or by adding new ones, and such modifications shall be binding on you upon your acceptance of the modified Agreement. Continued use of the Service after modifications to this Agreement shall constitute your acceptance of such modifications. Swapspace reserves the right to modify any information on pages referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Service after modifications to any information on pages referenced in the hyperlinks from this Agreement shall constitute your acceptance of such modifications.

3. Eligibility

The Service may only be used by individuals who have the right and authority to enter into this Agreement and are fully able and competent to satisfy the terms, conditions, and obligations herein. The Service is not available to Users who have had their User account temporarily or permanently deactivated. You may not allow other persons to use your User account, you agree that you are the sole authorized user of your User account, and you may not use your User account on behalf of any third party, except as otherwise expressly permitted by Swapspace. To use the Service, each User shall create a User account. Each person may only create one User account, and Swapspace reserves the right to deactivate any additional or duplicate accounts.

By becoming a User, you represent and warrant that you are at least 18 years old.

4. Swapspace Communications

4.1 User Opt-In (Affirmative Consent Required)

Swapspace operates a mobile messaging program ("Mobile Messaging Program") that delivers text messages (SMS, MMS, and RCS) related to parking availability, swap requests, confirmations, account notifications, and customer support, as well as optional promotional or marketing content.

You will not receive text messages from Swapspace unless you affirmatively opt in. Consent to receive text messages is not required to create an account or use the Service.

By opting in, you authorize Swapspace to send mobile messages to the phone number you provide, and you acknowledge that message frequency may vary based on your use of the Service.

Standard message and data rates may apply.

You are responsible for notifying us if you change or deactivate your mobile number.

Swapspace may use an automatic telephone dialing system ("autodialer") or other automated systems to send messages; however, your consent does not require or imply that any specific message will be sent using an autodialer.

4.2 User Opt-Out

You may opt out of receiving text messages at any time by replying "STOP" to any mobile message we send. After you send STOP you may receive a final confirmation message. No additional messages will be sent to your device unless you subsequently opt in again.

You acknowledge that opting out of operational or transactional messages may limit certain features of the Service.

For help, reply "HELP" or contact us at [email protected].

Email requests do not constitute a valid opt-out method.

4.3 Duty to Notify and Indemnify

If you change or discontinue the mobile number used for the Mobile Messaging Program, you agree to complete the opt-out process before doing so. Failure to do this may cause messages intended for you to be delivered to a third party. You agree to indemnify and hold Swapspace harmless from claims or liability arising from your failure to notify us of a number change, including claims under the Telephone Consumer Protection Act ("TCPA") or similar laws.

4.4 Program Description

Users who opt in to the Mobile Messaging Program may receive messages relating to:

• Parking availability notifications, swap requests, confirmations, and coordination;
• Updates concerning new or existing features of the Service; and
• Customer-support communications.

4.5 Cost and Frequency

Message and data rates may apply. Message frequency varies based on user activity, system events, and other interactions with the Service.

4.6 Support Instructions

For support regarding the Mobile Messaging Program, contact: [email protected].

Please note that this email address is not an acceptable method of opting out; opt-outs must be submitted using STOP or STOPALL.

4.7 MMS Disclosure

If your device does not support MMS messaging, the Mobile Messaging Program may deliver messages via SMS instead.

4.8 Disclaimer of Warranty

The Mobile Messaging Program is provided on an "as-is" basis and may not be available in all areas or at all times. Delivery of mobile messages is subject to effective transmission from your wireless carrier and is outside of Swapspace's control. Swapspace is not liable for delays or failures in message delivery.

4.9 Participant Requirements

Participants must have:

• A mobile device with SMS/MMS/RCS capabilities;
• A participating wireless carrier; and
• An active mobile subscription plan.

By opting in, you represent that the information you provide is accurate. Swapspace may revoke participation if it determines that provided information is false or misleading or that the Program is being used improperly.

4.10 Age Restriction

You may not participate in the Mobile Messaging Program if you are under thirteen (13) years of age. If you are between 13–18 years old, you must have parental or guardian consent.

4.11 Prohibited Content

You agree not to send prohibited or unlawful content over the Mobile Messaging Program, including but not limited to:

• Fraudulent, defamatory, harassing, or obscene content;
• Content promoting unlawful goods or activities;
• Malicious code (viruses, worms, etc.);
• Content that includes protected health information under HIPAA/HITECH; or
• Any other content prohibited by applicable law.

5. Your Information

Your Information is any information you provide, publish, or post, and any information provided on your behalf, to or through the Service (including any profile information you provide) or send to other Users (including via in-application feedback, in-application messaging, any email feature, or through any Swapspace-related Facebook, X or other social media posting) (your "Information"). You consent to us using your Information to create a User account that will allow you to use the Service. Our collection and use of personal information in connection with the Service is as provided in Swapspace's Privacy Policy. You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete Information and that we and other members of the public may rely on your Information as accurate, current and complete. To enable Swapspace to use your Information for the purposes described in the Privacy Policy and this Agreement, or to otherwise improve the Service, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. Swapspace does not assert any ownership over your Information; rather, as between you and Swapspace, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.

6. Promotions, Referrals, and Loyalty Programs

Swapspace, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. Swapspace reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that Swapspace determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. Swapspace reserves the right to terminate, discontinue, modify or cancel any promotions or programs at any time and in its sole discretion without notice to you.

Swapspace's referral program may provide you with incentives to refer your friends and family to become new Users of the Service (the "Referral Program"). Your participation in the Referral Program is subject to this Agreement and any additional Referral Program rules.

7. Restricted Activities

With respect to your use of the Service, you agree that you will not:

• use the Service in an unsafe manner, including while driving, biking, or operating any vehicle;
• impersonate any person or entity;
• stalk, threaten, or otherwise harass any person;
• violate any law, statute, rule, permit, ordinance or regulation;
• interfere with or disrupt the Service or the servers or networks connected to the Service;
• post Information or use the Service in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal;
• use the Service in any way that infringes any third party's rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
• post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of the Service or any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
• forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service;
• "frame" or "mirror" any part of the Service, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other website for any purpose;
• modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service;
• rent, lease, lend, sell, redistribute, license or sublicense the Service or access to any portion of the Service;
• use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, "data mine", copy, access, acquire information, generate impressions or clicks, input or store information, search, monitor any portion of the Service, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
• link directly or indirectly to any other websites;
• transfer, lend, or sell your User account, password and/or identification, or any other User's Information to any other party;
• use a false email address or other identifying information, impersonate or misrepresent any person or entity, or your affiliation with any person or entity, or otherwise omit, misrepresent, or mislead as to the origin or source of any entity accessing the Service;
• discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity or expression, physical or mental disability, medical condition, marital status, age or sexual orientation;
• violate any of the Referral Program rules if you participate in the Referral Program;
• commercialize the Service without an agreement directly with Swapspace;
• misuse or abuse the Service in violation of eligibility requirements as determined by Swapspace;
• circumvent any measures implemented by Swapspace to prevent or address violations of this Agreement; or
• cause any third party to engage in the restricted activities above.

Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security or violation of this Agreement, you agree to notify us immediately.

8. Disclaimers

The following disclaimers are made on behalf of Swapspace, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.

Swapspace does not provide parking services. It is up to Users on the app to decide whether or not to exchange a parking space with other Users contacted through the Service. We cannot ensure that a User will complete an arranged parking space exchange. We have no control over the legality, quality, or safety of any parking space identified on the Service.

The Service is provided on an "as is" basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Service, including the ability to identify a suitable parking spot at any given location or time. Swapspace reserves the right, for example, to limit or eliminate access to the Service in specific geographic areas and/or at specific times based on commercial viability, public health concerns, or changes in law. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

We do not warrant that your use of the Service will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the Service will be corrected, or that the Service is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity, availability, accuracy, completeness, and reliability of the Service, including with respect to mapping,. You are responsible at all times for your conduct and the consequences of your conduct while using the Service.

We cannot guarantee that each User is who he or she claims to be. Please use common sense when using the Service including looking at the photos and vehicle description for any User you have matched with. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Service by persons under the age of 18 in violation of this Agreement.

Swapspace is not responsible for the conduct, whether online or offline, of any User of the Service. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, any damage, parking tickets, fines, or other assessments that may be incurred after parking in a spot located using the Service. By using the Service, you agree to accept such risks and agree that Swapspace is not responsible for the acts or omissions of Users on the Service.

You are responsible for the use of your User account and Swapspace expressly disclaims any liability arising from the unauthorized use of your User account.

It is possible for others to obtain information about you that you provide, publish or post to or through the Service (including any profile information you provide), send to other Users, or share in connection with using the Service, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users while using the Service. Please carefully select the type of information that you post on the Service or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or "hackers").

Opinions, advice, statements, offers, or other information or content concerning Swapspace or made available through the Service, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Service or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Service and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this Agreement or which might be offensive, illegal, or that might violate the rights of, harm, or threaten the safety of Users or others.

Location data provided by the Service is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, or property or environmental damage. Neither Swapspace, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Service. Any of your Information, including geolocational data, you upload, provide, or post on the Service may be accessible to Swapspace and certain Users of the Service.

Swapspace advises you to use the Service with a data plan with unlimited or very high data usage limits, and Swapspace shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Service.

This paragraph applies to any version of the Service that you acquire from the Apple App Store. This Agreement is entered into between you and Swapspace. Apple, Inc. ("Apple") is not a party to this Agreement and shall have no obligations with respect to the Service. Swapspace, not Apple, is solely responsible for the Service and the content thereof as set forth hereunder. However, Apple and Apple's subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. This Agreement incorporates by reference Apple's Licensed Application End User License Agreement, for purposes of which, you are "the end-user." In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.

Swapspace does not own, operate, manage, control, or guarantee the existence of any parking space, the availability of any parking space, the accuracy of any listing or message appearing on the Service, the safety, legality, or suitability of any parking space, that a location will remain available for parking when you arrive. Swapspace makes no representations or warranties that any of the parking spaces identified on the Service are available, appropriate, or legal. You are solely responsible for assessing the fitness and legality of any place where you choose to park your vehicle. All parking decisions are your own responsibility. Swapspace shall have no responsibility for any parking tickets, fines, towing, damage, or other enforcement mechanisms that may result from parking a vehicle in a location identified on the Service.

You shall not use the Service while operating a vehicle, bike, or other equipment. You assume all risks associated with using the Service in any situation requiring your full attention. To the fullest extent permitted by law, Swapspace is not liable for any injuries, damages, accidents, or claims arising from the use of the Service while driving or otherwise distracted.

Swapspace may allow users to earn or purchase "points" and Users may earn points that may be redeemable for rewards, such as gift cards. You acknowledge and agree that points have no cash value and do not constitute currency. Any points purchased are not refundable. The value of points may change from time to time and at any time. Points may not be redeemable for the value of that they were purchased. Swapspace makes no guarantees regarding the redemption of points purchased on earned on the Service and no guarantees regarding the availability of awards. Swapspace may modify, suspend, or terminate the points program at any time without liability.

Swapspace shall not be in breach of this Agreement nor liable for failure or delay in performing obligations under this Agreement if such failure or delay results from events, circumstances or causes beyond its reasonable control including (without limitation) natural disasters or acts of God; labor disputes or stoppages; war; government action; epidemic or pandemic; chemical or biological contamination; strikes; riots; acts of domestic or international terrorism; quarantines; national or regional emergencies; or any other cause, whether similar in kind to the foregoing or otherwise, beyond the party's reasonable control. All service dates under this Agreement affected by force majeure shall be tolled for the duration of such force majeure. The parties hereby agree, when feasible, not to cancel but reschedule the pertinent obligations as soon as practicable after the force majeure condition ceases to exist.

9. Indemnity

You will indemnify and hold harmless and, at Swapspace's election, defend Swapspace including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders (collectively, the "Indemnified Parties") from and against any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of the Service, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials or Information that you submit to us or transmit through the Service or to us infringes, misappropriates, or otherwise violates the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a motor vehicle or passenger vehicle; and/or (5) any other activities in connection with the Service. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person. You will not, without Swapspace's prior written consent, agree to any settlement on behalf of any Indemnified Party which includes either the obligation to pay any monetary amounts, or any admissions of liability, whether civil or criminal, on the part of any Indemnified Party.

10. Limitation of Liability

IN NO EVENT WILL SWAPSPACE, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY "SWAPSPACE" FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICE, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SERVICE MAY BE USED BY YOU TO FACILITATE PARKING A VEHICLE, BUT YOU AGREE THAT SWAPSPACE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANYTHING THAT MAY RESULT FROM PARKING IN A LOCATION FOUND ON THE SERVICE. FOR CLARITY AND WITHOUT LIMITING THE FOREGOING, SWAPSPACE HAS NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR RELIANCE ON ANY REPRESENTATIONS MADE ON THE SERVICE REGARDING THE AVAILABILITY, SUITABILITY, OR LEGALITY OF ANY LOCATION FOR PARKING A VEHICLE. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

11. Term and Termination

This Agreement is effective upon your acceptance of this Agreement. This Agreement may be terminated: (a) by User, without cause, upon seven (7) days' prior written notice to Swapspace; or (b) by either party immediately, without notice, upon the other party's material breach of this Agreement. In addition, Swapspace may terminate this Agreement or deactivate your User account or cease offering or deny access to the Service or any portion thereof immediately in the event: (1) you are no longer eligible to qualify as a User; or (2) Swapspace has the good faith belief that such action is necessary to protect the safety of the Swapspace community or third parties, provided that in the event of a deactivation pursuant to (1)-(2) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Swapspace's reasonable satisfaction prior to Swapspace permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Swapspace's satisfaction, this Agreement will not be permanently terminated. Sections 2, 4, 5 (with respect to the license), and 8-15 shall survive any termination or expiration of this Agreement.

12. Dispute Resolution and Arbitration Agreement

12.1 Agreement to Binding Arbitration Between You and Swapspace.

YOU AND SWAPSPACE MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate ("Arbitration Agreement") is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16, including both the FAA's procedural and substantive provisions. If the FAA is inapplicable for any reason, then this Arbitration Agreement is governed by the laws of the State of Delaware, including the procedural and substantive provisions of Del. Code tit. 10, § 5701 et seq., without regard to choice of law principles. For the avoidance of doubt, a court may neither refuse to enforce this Arbitration Agreement, nor refuse to stay arbitration proceedings, pursuant to state law that is inconsistent with the FAA or Delaware law (including, for example, pursuant to California Code of Civil Procedure § 1281.2(c).) This Arbitration Agreement survives after the Agreement terminates or your relationship with Swapspace ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Swapspace (as defined above) as well as between you and our successors and assigns, employees, agents or shareholders. This Arbitration Agreement also applies to claims between you and Swapspace's service providers; and such service providers shall be considered intended third-party beneficiaries of this Arbitration Agreement.

Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A "CLAIM" AND COLLECTIVELY, "CLAIMS") SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Service, Swapspace promotions, gift card, referrals or loyalty programs, any other goods or services made available through the Service, your relationship with Swapspace, the threatened or actual suspension, deactivation or termination of your User account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Swapspace, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act of 1974 (except for individual claims for employee benefits under any benefit plan sponsored by Swapspace and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.

BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND SWAPSPACE ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.

12.2 Prohibition of Class Actions and Non-Individualized Relief.

YOU UNDERSTAND AND AGREE THAT YOU AND SWAPSPACE MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS ("CLASS ACTION WAIVER"). YOU UNDERSTAND AND AGREE THAT YOU AND SWAPSPACE BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST SWAPSPACE, WHICH ARE ADDRESSED SEPARATELY IN SECTION 12.3. ALSO NOTWITHSTANDING THE FOREGOING, THE PARTIES MAY AGREE TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT.

The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.

Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the American Arbitration Association ("AAA") Rules, disputes regarding the interpretation, applicability, or enforceability of this subsection 12.2 may be resolved only by a court and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action or otherwise seeks relief that is not limited to the individual party seeking relief, and (2) there is a final judicial determination that this subsection (b) is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a court of competent jurisdiction, but the Class Action Waiver and all other provisions in this subsection (b) shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible. The Parties agree that a court will decide any Claim or any particular remedy for a Claim severed from any arbitration only after the completion of that arbitration.

12.3 Representative PAGA Waiver.

Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Swapspace agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Swapspace agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, "representative PAGA Waiver").

Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims or portions of Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims or portions of such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims or portions of Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims or portions of Claims, the Parties agree that litigation of those Claims or portions of Claims shall be stayed pending the outcome of any individual Claims or portions of Claims in arbitration.

12.4 Pre-Arbitration Process.

A party who intends to initiate arbitration must first send to the other a written notice of the dispute ("Notice"). The Notice must (1) describe the factual and legal nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) include the name, mailing and email addresses, and phone number of the party sending the Notice.

Your Notice to Swapspace must be personally signed by you (and by your attorney if you are represented by counsel). Swapspace's notice to you must be personally signed by a Swapspace representative (and Swapspace's attorney if Swapspace is represented by counsel). To safeguard your User Account, you might be required to provide both your authentication and consent for us to discuss your User Account or share your User Account information with anyone but you, including an attorney ("Authentication and Consent").

Your Notice to Swapspace should be sent by email to [email protected]. Swapspace's notice to you will be sent by email to the most recent contact information that you have provided to Swapspace.

Whoever sends the Notice must give the other party 60 days from receipt of the complete Notice (including the Authentication and Consent, if required) to investigate the claim before commencing an arbitration. The submission of a complete Notice will toll any applicable statute of limitations or other limitations period for the claims and requested relief in the Notice until 60 days from when the other party receives the Notice of Dispute.

This Pre-Arbitration Process is essential so that you and Swapspace have a meaningful chance to resolve disputes informally. If any aspect of these requirements has not been met, a court can enjoin the filing or prosecution of an arbitration or assessment or collection of any arbitration fees in connection with such an arbitration. In addition, unless prohibited by law, the American Arbitration Association (or any other arbitration provider selected by the parties) may not accept, administer, assess, or demand fees in connection with such an arbitration. If the arbitration already is pending, it must be dismissed. If a process arbitrator has been appointed at the request of a party, the process arbitrator also has the same authority as a court to enforce the requirement that arbitration not be commenced until the requirements of this Section 12.4 have been satisfied.

12.5 Rules Governing the Arbitration.

Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the AAA pursuant to its Consumer Arbitration Rules, and, if applicable, its Mass Arbitration Supplementary Rules, that are in effect at the time the arbitration is initiated (the "AAA Rules"), as modified by the terms set forth in this Agreement. Copies of the AAA rules can be obtained at the AAA's website (www.adr.org). Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event, unless you and Swapspace agree otherwise, shall the arbitrator consolidate more than one person's Claims, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator, forum, and/or third party neutral upon mutual written agreement. If the AAA is unable or unwilling to administer the arbitration under this Arbitration Agreement, you and Swapspace will select another arbitration provider, forum, and/or third party neutral upon mutual written agreement. If there is no agreement, a court will do so.

As part of the arbitration, both you and Swapspace will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. Except as specified in subsections 12.2 and 12.3 above, the arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator's decision which shall explain the award given and the findings and conclusions on which the decision is based.

The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same Users to the extent required by applicable law. The arbitrator's ruling will not be binding in proceedings involving different Users. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.

12.6 Arbitration Fees and Awards.

The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:

Unless applicable law provides otherwise, each party shall pay its own attorneys' fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). Notwithstanding the foregoing, an arbitrator may award costs as provided in Federal Rule of Civil Procedure 68 or any state equivalents (which the parties agree shall apply in arbitration).

If the arbitrator issues you an award that is greater than the value of Swapspace's last written settlement offer made after you fully complied with the Pre-Arbitration Process described in subsection 12.4 above, then Swapspace will pay you the amount of the award or U.S. $1,000, whichever is greater. In determining whether you are entitled to the minimum $1,000 payment, the arbitrator shall not consider amounts offered or awarded for attorneys' fees or costs.

12.7 Location and Manner of Arbitration.

Unless you and Swapspace agree otherwise, the arbitration hearing, if any, between Swapspace and a User will take place in the county of your billing address or by videoconference. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for an AAA arbitration. Your right to the hearing and the format of the hearing will be determined by the AAA Rules. You and Swapspace agree that you and a Swapspace representative will personally appear (which can include appearance by videoconference) at the hearing (along with your and Swapspace's respective legal counsel, if the parties are represented by counsel).

12.8 Exceptions to Arbitration.

This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court's jurisdiction, so long as the action is not removed or appealed to a court of general jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 12.3 of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers' compensation, state disability insurance and unemployment insurance benefits; (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA; and (5) individual claims of sexual assault or sexual harassment in connection with the use of the Service. Where these claims are brought in a court of competent jurisdiction consistent with Section 13, Swapspace will not require arbitration of those claims. Swapspace's agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Agreement (including without limitation the waivers provided in Section 12.2), or of the enforceability of this Arbitration Agreement as to any other dispute, claim, or controversy.

Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board ("NLRB"), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Agreement, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Agreement or settled by you. Similarly, you may not recover money damages under this Arbitration Agreement if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement.

12.9 Severability.

Except as otherwise provided in the severability provisions in subsections 12.2 and 12.3 above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

12.10 Binding Effect; Third-Party Beneficiaries.

This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against any third parties, including but not limited to your spouses, heirs, third-party beneficiaries and permitted assigns, where their underlying claim(s) arise out of or relate to your use of the Service. To the extent that any third-party beneficiary to this Agreement brings claims against a party, those claims shall also be subject to this Arbitration Agreement.

13. Choice of Forum and Class-Action and Coordinated-Action Waiver for Non-Arbitrated Claims

Claims (1) excepted from arbitration by, and brought consistent with, Section 12.8 or (2) otherwise determined by a court of competent jurisdiction not to be subject to arbitration, shall be brought exclusively in the state or federal courts in the state in which the incident or accident underlying the plaintiff's claim(s) occurred, notwithstanding that other courts may have subject matter jurisdiction over the claims or personal jurisdiction over the parties.

If for any reason claims do not proceed in arbitration, such claims may be brought and litigated on an individual basis only. On an individual basis means that you cannot bring such claims as a class, collective, coordinated, consolidated, mass, multi-plaintiff, joint, and/or representative action against Swapspace, or otherwise seek to include your claims or case in a pending class, collective, coordinated, consolidated, mass, multi-plaintiff, joint, and/or representative action against Swapspace. No action brought by you may be consolidated or joined in any fashion with any other proceeding, except that the parties may agree to participate in a class-wide settlement. The interpretation, enforceability, and validity of this paragraph shall be governed by the laws of the State of Delaware without regard to choice of law principles, and by any applicable federal law. If Delaware law is inapplicable for any reason, then the interpretation, enforceability, and validity of this paragraph shall be governed by the law of the state where the court of competent jurisdiction deciding the claims is located. If there is a final judicial determination that any part of this paragraph is unenforceable or unlawful for any reason, the unenforceable or unlawful portion shall be severed and severance shall have no effect whatsoever on the enforceability, applicability, or validity of any other part of this Agreement, including without limitation the choice-of-forum provision in the preceding paragraph.

14. Confidentiality

You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Swapspace's business, operations and properties, information about a User made available to you in connection with such User's use of the Service, which may include the User's name, location, contact information and photo ("Confidential Information") disclosed to you by Swapspace for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties, and you agree not to store separate and outside of the Service any Confidential Information obtained from the Service. You will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Swapspace with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Swapspace or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Swapspace; becomes known to you, without restriction, from a source other than Swapspace without breach of this Agreement by you and otherwise not in violation of Swapspace's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you shall provide prompt notice of such court order or requirement to Swapspace to enable Swapspace to seek a protective order or otherwise prevent or restrict such disclosure.

15. General

Except as provided in Sections 12 and 13, this Agreement shall be governed by the laws of the State of New York without regard to choice of law principles. This choice of law provision is only intended to specify the use of New York law to interpret this Agreement and is not intended to create any other substantive right to non-New Yorkers to assert claims under New York law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Swapspace in our sole discretion by providing notice to you. You may not assign this Agreement without Swapspace's prior written approval. Any purported assignment by you in violation of this Section 15 shall be void. Except as explicitly stated otherwise, any notices to Swapspace shall be given to [email protected]. Any notices to you shall be provided to you through the Service or given to you via the email address or physical address you provide to Swapspace during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words "include", "includes" and "including" are deemed to be followed by the words "without limitation." A party's failure to act with respect to a breach by the other party does not constitute a waiver of the party's right to act with respect to subsequent or similar breaches, any such waiver shall be in writing. This Agreement sets forth the entire understanding and agreement between you and Swapspace with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.

16. Contact Us

For questions about these Terms please contact [email protected].