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Qvivr Master Terms of Service

Last updated April 26, 2016

Qvivr, Inc. (“Qvivr”) has developed a digital wallet comprising of a physical device (the “SWYP Card”) and a smartphone application (the “SWYP App” or “App”) that enables you to access and manage multiple credit cards, debit cards, loyalty cards, gift cards, and many other cards that contains a magnetic strip. The SWYP App allows you to add multiple magnetic stripe based cards to the SWYP Card using a reader (the “SWYP Reader”) that plugs into the smartphone and accessible through the SWYP App. The SWYP Card, SWYP Reader, and the SWYP App along with other software applications available at www.swypcard.com (“Site”) allow you to manage access to your payment methods. The SWYP Card and SWYP Reader (collectively “SWYP Device” or “Device”), the SWYP App, and the Site are collectively referred to herein as the “Service.” This Master Terms of Service along with the Additional Terms (defined below), as such terms and policies, may be updated from time to time (collectively, the “Terms”), governs your use of the Apps and the Qvivr Service.  Qvivr and SWYP may be used interchangeably within these Terms.

By downloading the SWYP App, visiting the Site, using a Qvivr Device, or otherwise accessing or using the Service, you agree that you have read, understood, and agree to be bound by these Terms. If you do not agree, you may not use the Service.

1. USE OF THE SERVICE.

You are solely responsible for the use of the Service. By using the service you acknowledge that your use of the Service is solely at your own risk. Your use of the App or any other downloadable software components provided by Qvivr is subject to these Terms and any Additional Terms provided by Qvivr.

2. ADDITIONAL TERMS.

In addition to these Master Terms of Service, the following additional terms apply to your use of the Service. By using the Service, you agree to be bound by these additional terms (including any age restrictions applicable to use of a particular App or feature of the Service), as applicable, which are incorporated herein by reference (collectively the “Additional Terms”):

Privacy Policy, which describes Qvivr’s policies with respect to the collection, use, and disclosure of personal information from you; and

EULA, which governs your use of software applications you may obtain from Qvivr;

Any purchasing terms Qvivr includes when you purchase a Qvivr Device; and

Any additional terms or conditions Qvivr may supply from time to time.

In the event of a conflict between the terms and conditions in this document and the terms in any of the Additional Terms, these Master Terms of Service will control.

3. ORDERING QVIVR DEVICES.

a. Qvivr has accepted pre-orders at various times and discounts since January 27, 2015.  These pre-orders are fully refundable and cancellable at any time prior to shipment.  Pre-orders have been processed by Tilt, Inc. and are governed by their Terms of Service available at http://policies.tilt.com/us/terms.html 

b. Ordering, Generally. Qvivr may make Qvivr Devices available for purchase through the Site. Any sale of Qvivr Devices through the Site or any element of the Service is subject to these Terms, to any Additional Terms, or to any applicable bill of sale or purchase agreement. You agree to pay any amounts and fees Qvivr may charge for your purchase of the Qvivr Device or any associated Apps (a “Payment”). Before you are required to make any Payment, you will have an opportunity to review and accept the amount that you will be charged for such Payment. All Payments are in U.S. Dollars and are non-refundable, except as otherwise provided for by these Terms or any Additional Terms that may apply. Qvivr may change the Payment required for any component of the Service, including by changing the price for each Qvivr Device, on a going-forward basis, at any time. Qvivr will charge the payment method you specify at the time of purchase. You authorize Qvivr to charge all sums described herein to such payment method. If you make any applicable Payment with a credit card, Qvivr may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

c. Shipping your order. After you complete your order, Qvivr may contact you at the email address you provided during the order process to request that you provide or confirm certain information necessary to ship your Qvivr Device(s), including but not limited to (1) the name to be associated with each Qvivr Device you ordered; and (2) the address to which each Qvivr Device you ordered should be shipped (collectively, the “Shipment Information”).

d.  Purchases made through the Qvivr store are intended for end users only, and are not authorized for resale. Qvivr will not be responsible for supporting devices purchased through third parties.  Any device purchased through a third party will not be covered by any Warranty.

If you do not provide or confirm Shipment Information within 30 days of Qvivr’s request for Shipment Information, Qvivr may, at its discretion, (1) cancel or refund your order; (2) ship your order based on partial information, if Qvivr is able; (3) ship all units from a single order to one address, if address information has been provided or confirmed for at least one unit; (4) deem your order to be fulfilled, reserving the right to make commercially reasonable efforts to ship you a substitute.

If Qvivr determines, at its sole discretion, that it cannot ship a Qvivr Device using the Shipment Information you provide or confirm, Qvivr may cancel or refund your order.

e. Special Terms Regarding Preview Units. Some versions of the SWYP Card may be labeled as a “Preview Unit not for Sale”.  These first production units have not completed the FCC certification process and will be replaced with a certified unit at no additional charge when available.  If you do not want to keep a preview unit, you may return for a full refund at any time and maintain your place on the pre-order queue.

4. LICENSE GRANT.

Subject to these Terms, Qvivr grants you a limited, non-exclusive, non-transferable, term-limited, non-sublicensable, revocable license to use any software that is provided by Qvivr that is pre-installed on, embedded in or incorporated into the Qvivr Device (“Embedded Software”) solely in connection with your use of the Service.

5. ACCOUNT INFORMATION & RESPONSIBILITIES OF REGISTERED USERS.

a. Account Information. For security purposes, in order to access the Service and use the Qvivr Device, you have to create an account and verify your identity to help make sure that you are only putting your payment methods on the App and on the Qvivr Device. You hereby represent and warrant that the information you provide to Qvivr upon registration will be true, accurate, current, and complete and that you will only put payment methods in the App and on the Qvivr Device that belong to you. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.

b. Password. As a registered user, you will be required to create login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by any third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Qvivr by e-mail to fraud@swypcard.com. You are solely responsible for your own losses or losses incurred by Qvivr and others due to any unauthorized use of your account.

6. LINKED ACCOUNTS.

Some Apps and features of the Service may allow you to link your account(s) on the Service to your accounts on third party services, such as online banking services (“Integrated Services”). You may be given the option to link your account on the Service to an account on an Integrated Service. If you link your account on the Service to an account on an Integrated Service, you are authorizing Qvivr to store and use your access credentials to access your account on your behalf as your agent to integrate your experience with the Service with content, information, and features available through such Integrated Services. Use of Integrated Services through the Service in this manner may be subject to additional terms established by the applicable third parties providing the Integrated Services, and it is your sole responsibility to comply with such third party terms.

7. THIRD PARTY CONTENT.

a. General. Qvivr may contain or display through the Service various materials and content from third parties (“Third Party Materials”). The display on or through the Service of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Qvivr of any third party or any affiliation between any such third party and Qvivr. Furthermore, in using and accessing the Service, you agree that Qvivr is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Qvivr’s display of specific Third Party Materials does not suggest a recommendation by Qvivr of the third party or any products, services, websites or plans offered. Your interaction with any third party accessed through the Service (whether online or offline) is at your own risk, and Qvivr will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.

b. Third Party Links and References. The Service may contain references or links to third-party materials and websites not controlled by Qvivr. Qvivr provides such information and links as a convenience to you and such links and references should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that Qvivr is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Service.

8. USE RESTRICTIONS.

Qvivr does not allow use of the Service for any illegal, abusive purposes, in any manner that interferes with or interrupts the proper functioning of the Service, or through the use of any bot, crawler, spider, or other automated process. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Qvivr, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting Qvivr Support at help@swypcard.com.

9. LOST, DAMAGED OR STOLEN CARD.

In the event that your Qvivr Device is lost or stolen:

Please contact help@qvivr.com immediately.  You should also contact the customer service department of your payment card provider and/or financial institution to suspend access to the financial accounts and payment methods associated with your Qvivr Device.   If your Qvivr Device is lost, damaged or stolen you may purchase a replacement device directly from Qvivr via the Qvivr app or website. Please note that your purchase of a new Qvivr Device may require you to update some or all of the financial account information that you previously provided to Qvivr.

10. SITE RESTRICTIONS.

You agree not to use the Service or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not do, or attempt to do, any of the following:

Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Service, use of the Service, access to the Service, or content obtained through the Service for any purpose other than for your authorized use of the features of the Service that you have fully paid for, in accordance with all applicable Terms;

Access or use the Service for any comparative or competitive research purposes;

Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, or features that enforce limitations on the use of the Service or any content therein;

Use any manual or automated means to extract and/or compile content from the Service for any commercial purpose or otherwise;

Interfere with or disrupt the Service, networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers;

Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, x-raying, disassembling or hacking of all or part of the Service or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Service other than as intended; or

Use the Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.

You expressly agree to abide by all the foregoing restrictions, except to the extent any foregoing restriction is prohibited by law.

11. RESERVATION OF RIGHTS.

The Service is owned and operated by Qvivr. The software, content, visual interfaces, interactive features, information, trademarks, logos, graphics, design, compilation, computer code, products, software, services, content, and all other elements of the Service (“Qvivr Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Qvivr Materials, including intellectual property rights therein and thereto, are the property of Qvivr or its subsidiaries or affiliated companies and/or third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Qvivr Materials. Qvivr reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Qvivr Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Terms.

12. TERM AND TERMINATION.

These Terms will remain in effect until terminated. Your rights and licenses under these Terms will terminate immediately upon your breach of the Terms. You may terminate these Terms by canceling your account with Qvivr and, if applicable uninstalling and ceasing use of the Apps. Qvivr may terminate the Service, disable any App, and/or these Terms, or limit or terminate your access to the Service at any time for any reason or no reason at all. No refunds will be granted in connection with any termination of the Service. Sections 2-3 and 9-18 shall survive the termination of this Agreement for any reason, along with any provisions of the Additional Terms that expressly by their terms survive. You agree that termination of your account is your sole remedy for any dissatisfaction with the Service.

13. MODIFICATIONS.

Qvivr reserves the right, in its sole discretion, to add, remove, or modify features of the Service at any time for any reason without liability to you. Qvivr may change, modify, add, or remove portions of these Terms (including the Additional Terms) at any time by making such modified terms available to you on the Qvivr website or through an App, or both. If Qvivr materially modifies these Terms, it will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Service for the first time after such material changes are made. No modifications to these Terms will apply to any dispute between you and Qvivr that arose prior to the date of such modification. Your use of the Service after modifications to these Terms become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of these Terms, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.

14. INDEMNITY.

You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Qvivr and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Qvivr Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service at any time; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. Qvivr reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with Qvivr’s defense of such claim.

15. WARRANTY DISCLAIMER.

THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED AT HTTPS://WWW.SWYPCARD.COM/WARRANTY. THE QVIVR ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE QVIVR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE QVIVR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND ANY MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES IS AT YOUR OWN DISCRETION AND RISK.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

16. LIMITATION OF LIABILITY.

IN NO EVENT WILL THE QVIVR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE QVIVR ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.

YOU AGREE THAT THE AGGREGATE LIABILITY OF THE QVIVR ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO QVIVR FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $5.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT QVIVR HAS OFFERED ITS SERVICE AND QVIVR DEVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND QVIVR, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND QVIVR.

EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

17. DISPUTE RESOLUTION.

You agree that any dispute between you and Qvivr arising out of or relating to these Terms, or any other Qvivr products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

GOVERNING LAW

The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.

INFORMAL DISPUTE RESOLUTION

We want to address your concerns without needing a formal legal case. Before filing a claim against Qvivr, you agree to try to resolve the Dispute informally by contacting support@swypcard.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Qvivr may bring a formal proceeding.

WE BOTH AGREE TO ARBITRATE

You and Qvivr agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

OPT-OUT OF AGREEMENT TO ARBITRATE

You can decline this agreement to arbitrate by contacting legal@swypcard.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.

ARBITRATION PROCEDURES

The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the Santa Clara county, California, or any other location we agree to.

ARBITRATION FEES

The AAA rules will govern payment of all arbitration fees. Qvivr will pay all arbitration fees for claims less than $10,000. Qvivr will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

EXCEPTIONS TO AGREEMENT TO ARBITRATE

Either you or Qvivr may assert claims, if they qualify, in small claims court in San Clara County (CA) or any other location we agree to. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Qvivr Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

NO CLASS ACTIONS

You may only resolve Disputes with Qvivr on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.

JUDICIAL FORUM FOR DISPUTES

In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Qvivr agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Santa Clara County, California. Both you and Qvivr consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

LIMITATION ON CLAIMS

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Qvivr Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

18. MISCELLANEOUS.

a. Governing Law. These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents regardless of your country of origin or where you access the Services, and without regard to conflict of law principles or the United Nations Convention for the International Sale of Goods.

b. Jurisdiction and Venue. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Qvivr agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara county, California for the purpose of litigating all such claims or disputes.

c. Entire Agreement. These Terms (including the various additional terms incorporated herein by reference) constitute the entire agreement between you and Qvivr, and supersedes any and all prior agreements, negotiations, or other communications between you and Qvivr, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.

d. Severability. In the event that any provision of these Terms is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from these Terms; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.

e. Compliance with Laws. You agree to abide by all applicable laws in your use of the Service, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions.

f. Assignment. You may not assign these Terms without the prior written consent of Qvivr, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Qvivr may assign these Terms without restriction. Subject to the foregoing, these Terms shall be binding on the parties and their respective successors and permitted assigns.

g. Force Majeure. You acknowledge and understand that if Qvivr is unable to provide the Service as a result of a force majeure event Qvivr will not be in breach of these Terms. A force majeure event means any event beyond the control of Qvivr.

h. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in these Terms or by law shall not constitute a waiver of that right, power or remedy. Qvivr’s waiver of any obligation or breach of these Terms shall not operate as a waiver of any other obligation or subsequent breach of these Terms.

i. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

j. Export. The Qvivr Device and Service may be subject to United States export controls. You may not export or re-export a Qvivr Device or any element of the Service without: (a) the prior written consent of Qvivr, (b) complying with any applicable export control laws, and (c) obtaining all appropriate permits and licenses. In any event, you may not transfer or authorize the transfer of the Qvivr Device to a prohibited territory, country or organization (currently including, without limitation Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria and any organization named on the United States’ Commerce Department’s “Denied Parties List”) or otherwise in violation of any applicable restrictions or regulations. You understand and agree that the Qvivr Device and Service may contain information that is controlled and restricted from export by United States export controls (the “Controlled Information”). If Qvivr, in its sole discretion, determines that it cannot implement the Service in a manner to exclude access to Controlled Information where required, if you are in a country or territory that is subject to such regulation, you shall not be provided access to the Service.

19. CONTACTING QVIVR.

The Service hereunder is offered by Qvivr, Inc.:

Qvivr, Inc.

2880 Lakeside Drive

Suite 131

Santa Clara, CA 95054

If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.

Qvivr Master Terms of Service

Last updated 4/20/16 12:21 PM

Qvivr, Inc. (“Qvivr”) has developed a digital wallet comprising of a physical device (the “SWYP Card”) and a smartphone application (the “SWYP App” or “App”) that enables you to access and manage multiple credit cards, debit cards, loyalty cards, gift cards, and many other cards that contains a magnetic strip. The SWYP App allows you to add multiple magnetic stripe based cards to the SWYP Card using a reader (the “SWYP Reader”) that plugs into the smartphone and accessible through the SWYP App. The SWYP Card, SWYP Reader, and the SWYP App along with other software applications available at www.swypcard.com (“Site”) allow you to manage access to your payment methods. The SWYP Card and SWYP Reader (collectively “SWYP Device” or “Device”), the SWYP App, and the Site are collectively referred to herein as the “Service.” This Master Terms of Service along with the Additional Terms (defined below), as such terms and policies, may be updated from time to time (collectively, the “Terms”), governs your use of the Apps and the Qvivr Service. [a] Qvivr and SWYP may be used interchangeably within these Terms.

By downloading the SWYP App, visiting the Site, using a Qvivr Device, or otherwise accessing or using the Service, you agree that you have read, understood, and agree to be bound by these Terms. If you do not agree, you may not use the Service.

1. USE OF THE SERVICE.

You are solely responsible for the use of the Service. By using the service you acknowledge that your use of the Service is solely at your own risk. Your use of the App or any other downloadable software components provided by Qvivr is subject to these Terms and any Additional Terms provided by Qvivr.

2. ADDITIONAL TERMS.

In addition to these Master Terms of Service, the following additional terms apply to your use of the Service. By using the Service, you agree to be bound by these additional terms (including any age restrictions applicable to use of a particular App or feature of the Service), as applicable, which are incorporated herein by reference (collectively the “Additional Terms”):

Privacy Policy, which describes Qvivr’s policies with respect to the collection, use, and disclosure of personal information from you; and

EULA, which governs your use of software applications you may obtain from Qvivr;

Any purchasing terms Qvivr includes when you purchase a Qvivr Device; and

Any additional terms or conditions Qvivr may supply from time to time.

In the event of a conflict between the terms and conditions in this document and the terms in any of the Additional Terms, these Master Terms of Service will control.

3. ORDERING QVIVR DEVICES.

a. Qvivr has accepted pre-orders at various times and discounts since January 27, 2015.  These pre-orders are fully refundable and cancellable at any time prior to shipment.  Pre-orders have been processed by Tilt, Inc. and are governed by their Terms of Service available at http://policies.tilt.com/us/terms.html 

b. Ordering, Generally. Qvivr may make Qvivr Devices available for purchase through the Site. Any sale of Qvivr Devices through the Site or any element of the Service is subject to these Terms, to any Additional Terms, or to any applicable bill of sale or purchase agreement. You agree to pay any amounts and fees Qvivr may charge for your purchase of the Qvivr Device or any associated Apps (a “Payment”). Before you are required to make any Payment, you will have an opportunity to review and accept the amount that you will be charged for such Payment. All Payments are in U.S. Dollars and are non-refundable, except as otherwise provided for by these Terms or any Additional Terms that may apply. Qvivr may change the Payment required for any component of the Service, including by changing the price for each Qvivr Device, on a going-forward basis, at any time. Qvivr will charge the payment method you specify at the time of purchase. You authorize Qvivr to charge all sums described herein to such payment method. If you make any applicable Payment with a credit card, Qvivr may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

c. Shipping your order. After you complete your order, Qvivr may contact you at the email address you provided during the order process to request that you provide or confirm certain information necessary to ship your Qvivr Device(s), including but not limited to (1) the name to be associated with each Qvivr Device you ordered; and (2) the address to which each Qvivr Device you ordered should be shipped (collectively, the “Shipment Information”).

d.  Purchases made through the Qvivr store are intended for end users only, and are not authorized for resale.[b]

If you do not provide or confirm Shipment Information within 30 days of Qvivr’s request for Shipment Information, Qvivr may, at its discretion, (1) cancel or refund your order; (2) ship your order based on partial information, if Qvivr is able; (3) ship all units from a single order to one address, if address information has been provided or confirmed for at least one unit; (4) deem your order to be fulfilled, reserving the right to make commercially reasonable efforts to ship you a substitute.

If Qvivr determines, at its sole discretion, that it cannot ship a Qvivr Device using the Shipment Information you provide or confirm, Qvivr may cancel or refund your order.

e. Special Terms Regarding Preview Units. Some versions of the SWYP Card may be labeled as a “Preview Unit not for Sale”.  These first production units have not completed the FCC certification process and will be replaced with a certified unit at no additional charge when available.  If you do not want to keep a preview unit, you may return for a full refund at any time and maintain your place on the pre-order queue[c].

4. LICENSE GRANT.

Subject to these Terms, Qvivr grants you a limited, non-exclusive, non-transferable, term-limited, non-sublicensable, revocable license to use any software that is provided by Qvivr that is pre-installed on, embedded in or incorporated into the Qvivr Device (“Embedded Software”) solely in connection with your use of the Service.

5. ACCOUNT INFORMATION & RESPONSIBILITIES OF REGISTERED USERS.

a. Account Information. For security purposes, in order to access the Service and use the Qvivr Device, you have to create an account and verify your identity to help make sure that you are only putting your payment methods on the App and on the Qvivr Device. You hereby represent and warrant that the information you provide to Qvivr upon registration will be true, accurate, current, and complete and that you will only put payment methods in the App and on the Qvivr Device that belong to you. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.

b. Password. As a registered user, you will be required to create login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by any third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Qvivr by e-mail to fraud@swypcard.com. You are solely responsible for your own losses or losses incurred by Qvivr and others due to any unauthorized use of your account.

6. LINKED ACCOUNTS.

Some Apps and features of the Service may allow you to link your account(s) on the Service to your accounts on third party services, such as online banking services (“Integrated Services”). You may be given the option to link your account on the Service to an account on an Integrated Service. If you link your account on the Service to an account on an Integrated Service, you are authorizing Qvivr to store and use your access credentials to access your account on your behalf as your agent to integrate your experience with the Service with content, information, and features available through such Integrated Services. Use of Integrated Services through the Service in this manner may be subject to additional terms established by the applicable third parties providing the Integrated Services, and it is your sole responsibility to comply with such third party terms.

7. THIRD PARTY CONTENT.

a. General. Qvivr may contain or display through the Service various materials and content from third parties (“Third Party Materials”). The display on or through the Service of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Qvivr of any third party or any affiliation between any such third party and Qvivr. Furthermore, in using and accessing the Service, you agree that Qvivr is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Qvivr’s display of specific Third Party Materials does not suggest a recommendation by Qvivr of the third party or any products, services, websites or plans offered. Your interaction with any third party accessed through the Service (whether online or offline) is at your own risk, and Qvivr will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.

b. Third Party Links and References. The Service may contain references or links to third-party materials and websites not controlled by Qvivr. Qvivr provides such information and links as a convenience to you and such links and references should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that Qvivr is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Service.

8. USE RESTRICTIONS.

Qvivr does not allow use of the Service for any illegal, abusive purposes, in any manner that interferes with or interrupts the proper functioning of the Service, or through the use of any bot, crawler, spider, or other automated process. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Qvivr, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting Qvivr Support at help@swypcard.com.

9. LOST, DAMAGED OR STOLEN CARD.

In the event that your Qvivr Device is lost or stolen:

You should immediately contact the customer service department of your payment card provider and/or financial institution to suspend access to the financial accounts and payment methods associated with your Qvivr Device.

If your Qvivr Device is lost, damaged or stolen you may purchase a replacement device directly from Qvivr via the Qvivr app or website. Please note that your purchase of a new Qvivr Device may require you to update some or all of the financial account information that you previously provided to Qvivr.

10. SITE RESTRICTIONS.

You agree not to use the Service or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not do, or attempt to do, any of the following:

Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Service, use of the Service, access to the Service, or content obtained through the Service for any purpose other than for your authorized use of the features of the Service that you have fully paid for, in accordance with all applicable Terms;

Access or use the Service for any comparative or competitive research purposes;

Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, or features that enforce limitations on the use of the Service or any content therein;

Use any manual or automated means to extract and/or compile content from the Service for any commercial purpose or otherwise;

Interfere with or disrupt the Service, networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers;

Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, x-raying, disassembling or hacking of all or part of the Service or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Service other than as intended; or

Use the Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.

You expressly agree to abide by all the foregoing restrictions, except to the extent any foregoing restriction is prohibited by law.

11. RESERVATION OF RIGHTS.

The Service is owned and operated by Qvivr. The software, content, visual interfaces, interactive features, information, trademarks, logos, graphics, design, compilation, computer code, products, software, services, content, and all other elements of the Service (“Qvivr Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Qvivr Materials, including intellectual property rights therein and thereto, are the property of Qvivr or its subsidiaries or affiliated companies and/or third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Qvivr Materials. Qvivr reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Qvivr Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Terms.

12. TERM AND TERMINATION.

These Terms will remain in effect until terminated. Your rights and licenses under these Terms will terminate immediately upon your breach of the Terms. You may terminate these Terms by canceling your account with Qvivr and, if applicable uninstalling and ceasing use of the Apps. Qvivr may terminate the Service, disable any App, and/or these Terms, or limit or terminate your access to the Service at any time for any reason or no reason at all. No refunds will be granted in connection with any termination of the Service. Sections 2-3 and 9-18 [d]shall survive the termination of this Agreement for any reason, along with any provisions of the Additional Terms that expressly by their terms survive. You agree that termination of your account is your sole remedy for any dissatisfaction with the Service.

13. MODIFICATIONS.

Qvivr reserves the right, in its sole discretion, to add, remove, or modify features of the Service at any time for any reason without liability to you. Qvivr may change, modify, add, or remove portions of these Terms (including the Additional Terms) at any time by making such modified terms available to you on the Qvivr website or through an App, or both. If Qvivr materially modifies these Terms, it will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Service for the first time after such material changes are made. No modifications to these Terms will apply to any dispute between you and Qvivr that arose prior to the date of such modification. Your use of the Service after modifications to these Terms become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of these Terms, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.

14. INDEMNITY.

You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Qvivr and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Qvivr Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service at any time; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. Qvivr reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with Qvivr’s defense of such claim.

15. WARRANTY DISCLAIMER.

THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED AT HTTPS://WWW.SWYPCARD.COM/WARRANTY. THE QVIVR ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE QVIVR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE QVIVR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND ANY MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES IS AT YOUR OWN DISCRETION AND RISK.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

16. LIMITATION OF LIABILITY.

IN NO EVENT WILL THE QVIVR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE QVIVR ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.

YOU AGREE THAT THE AGGREGATE LIABILITY OF THE QVIVR ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO QVIVR FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $5.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT QVIVR HAS OFFERED ITS SERVICE AND QVIVR DEVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND QVIVR, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND QVIVR.

EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

17. DISPUTE RESOLUTION.

You agree that any dispute between you and Qvivr arising out of or relating to these Terms, or any other Qvivr products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

GOVERNING LAW

The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.

INFORMAL DISPUTE RESOLUTION

We want to address your concerns without needing a formal legal case. Before filing a claim against Qvivr, you agree to try to resolve the Dispute informally by contacting support@swypcard.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Qvivr may bring a formal proceeding.

WE BOTH AGREE TO ARBITRATE

You and Qvivr agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

OPT-OUT OF AGREEMENT TO ARBITRATE

You can decline this agreement to arbitrate by contacting legal@swypcard.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.

ARBITRATION PROCEDURES

The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the Santa Clara county, California, or any other location we agree to.

ARBITRATION FEES

The AAA rules will govern payment of all arbitration fees. Qvivr will pay all arbitration fees for claims less than $10,000. Qvivr will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

EXCEPTIONS TO AGREEMENT TO ARBITRATE

Either you or Qvivr may assert claims, if they qualify, in small claims court in San Clara County (CA) or any other location we agree to. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Qvivr Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

NO CLASS ACTIONS

You may only resolve Disputes with Qvivr on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.

JUDICIAL FORUM FOR DISPUTES

In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Qvivr agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Santa Clara County, California. Both you and Qvivr consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

LIMITATION ON CLAIMS

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Qvivr Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

18. MISCELLANEOUS.

a. Governing Law. These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents regardless of your country of origin or where you access the Services, and without regard to conflict of law principles or the United Nations Convention for the International Sale of Goods.

b. Jurisdiction and Venue. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Qvivr agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara county, California for the purpose of litigating all such claims or disputes.

c. Entire Agreement. These Terms (including the various additional terms incorporated herein by reference) constitute the entire agreement between you and Qvivr, and supersedes any and all prior agreements, negotiations, or other communications between you and Qvivr, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.

d. Severability. In the event that any provision of these Terms is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from these Terms; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.

e. Compliance with Laws. You agree to abide by all applicable laws in your use of the Service, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions.

f. Assignment. You may not assign these Terms without the prior written consent of Qvivr, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Qvivr may assign these Terms without restriction. Subject to the foregoing, these Terms shall be binding on the parties and their respective successors and permitted assigns.

g. Force Majeure. You acknowledge and understand that if Qvivr is unable to provide the Service as a result of a force majeure event Qvivr will not be in breach of these Terms. A force majeure event means any event beyond the control of Qvivr.

h. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in these Terms or by law shall not constitute a waiver of that right, power or remedy. Qvivr’s waiver of any obligation or breach of these Terms shall not operate as a waiver of any other obligation or subsequent breach of these Terms.

i. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

j. Export. The Qvivr Device and Service may be subject to United States export controls. You may not export or re-export a Qvivr Device or any element of the Service without: (a) the prior written consent of Qvivr, (b) complying with any applicable export control laws, and (c) obtaining all appropriate permits and licenses. In any event, you may not transfer or authorize the transfer of the Qvivr Device to a prohibited territory, country or organization (currently including, without limitation Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria and any organization named on the United States’ Commerce Department’s “Denied Parties List”) or otherwise in violation of any applicable restrictions or regulations. You understand and agree that the Qvivr Device and Service may contain information that is controlled and restricted from export by United States export controls (the “Controlled Information”). If Qvivr, in its sole discretion, determines that it cannot implement the Service in a manner to exclude access to Controlled Information where required, if you are in a country or territory that is subject to such regulation, you shall not be provided access to the Service.

19. CONTACTING QVIVR.

The Service hereunder is offered by Qvivr, Inc.:

Qvivr, Inc.

2880 Lakeside Drive

Suite 131

Santa Clara, CA 95054

If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.


QVIVR MOBILE APP END USER LICENSE AGREEMENT

Last updated 4/20/16 12:21 PM

PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE APPLICATION (“APP”) PROVIDED BY QVIVR, INC. (“QVIVR”). THIS IS A LEGAL AGREEMENT BETWEEN QVIVR AND YOU. THIS EULA, THE QVIVR MASTER TERMS OF SERVICE (AVAILABLE AT https://www.swypcard.com/terms) AND THE QVIVR PRIVACY POLICY (AVAILABLE AT https://www.swypcard.com/privacy) ARE INCORPORATED HEREIN BY REFERENCE (COLLECTIVELY THE “TERMS”) AND GOVERN YOUR ACCESS TO AND USE OF THE APP. ANY TERMS NOT DEFINED IN THIS EULA SHALL BE GIVEN THE SAME MEANING AS STATED IN THE MASTER TERMS OF SERVICE.

BY DOWNLOADING, INSTALLING OR USING THE APP YOU ACKNOWLEDGE AND AGREE THAT:

your use of the App in conjunction with the Qvivr Device is solely at your own risk;

the App is licensed, not sold to you and you may use the App only as set forth in this EULA;

you consent to the collection, use, sharing and transfer of your personally identifiable information, including the transfer and processing of your information outside your home country, as outlined in the Qvivr Privacy Policy available at https://www.swypcard.com/privacy;

you acknowledge that third party terms and fees may apply to the use and operation of your mobile device in connection with your use of the App, such as your carrier’s terms of service, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees;

as set forth in this EULA, the App is provided “as is”;

you may send an e-mail to eula@swypcard.com to have a copy of this EULA sent to you; and

if you are using the App on an iOS product, you agree to and acknowledge the “Notice Regarding Apple,” below.

IF YOU DO NOT AGREE TO BE BOUND BY ABOVE TERMS (AS DESCRIBED IN FURTHER DETAIL BELOW) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE APP.

MODIFICATION OF THE EULA. Qvivr reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If Qvivr materially modifies this EULA it will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the App or the Service for the first time after such material changes are made. By continuing to use the App after Qvivr has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to discontinue the use of and uninstall the App. This Agreement will also govern any software upgrades and/or updates provided by Qvivr that upgrade and/or supplement the App, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.

LIMITED LICENSE. Conditioned upon your compliance with the terms and conditions of this EULA, Qvivr hereby grants to you a limited, revocable, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to install and use the executable form of the App solely for your personal use on a device (whether mobile device or other) owned or controlled by you. Qvivr reserves all rights in the App not expressly granted to you in this EULA.

PHONE SETTINGS AND UNINSTALL PROCEDURES. As part of the installation process of the App, you may be changing your mobile device settings. By installing the App, you agree you have approved such changes. Such changes may include, without limitation, the following:

Allowing software updates of the App once a new version is released and showing notifications from the App.

Allowing Qvivr access to location-based information.

To uninstall the App, you may use the standard uninstall procedures offered by your device’s operating system.

USE RESTRICTIONS. You may not use the App in any manner that could: (i) damage, disable, overburden, or impair the App (or any server or networks connected to the App), or (ii) interfere with any third party’s use and/or enjoyment of the App (or any server or networks connected to the App). Except as expressly specified in this EULA, you may not: (a) copy or modify the App; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the App to any third party; or (c) use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the App, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Qvivr and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the App provided in object code or any other Qvivr products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.

OPEN SOURCE. Any Open Source Software that may be accompanying the App is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” mean open source software components provided with the App that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the App. This EULA does not apply to any Open Source Software accompanying the App and Qvivr hereby disclaims any and all liability to you or any third party related thereto.

RESERVATION OF RIGHTS. The software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code and all other elements of the App (the “Qvivr Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Qvivr Materials, including intellectual property rights therein and thereto, are the property of Qvivr or its subsidiaries or affiliated companies and/or third-party licensors. Qvivr reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the Qvivr Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.

TERM AND TERMINATION. This EULA will remain in effect until terminated. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. You may terminate the EULA by uninstalling and discontinuing your use of the App. Qvivr may terminate support of the App and/or this EULA, or limit or terminate your access to the App at any time for any reason. Sections entitled Reservation of Rights, Term and Termination, Warranty Disclaimer and Limitation of Liability, Indemnification, and Miscellaneous shall survive any termination of this EULA.

WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. THE APP IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QVIVR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. QVIVR EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE.

LIABILITY WAIVER. UNDER NO CIRCUMSTANCES WILL QVIVR, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE AND ANY INFORMATION AVAILABLE THEREON, EVEN IF QVIVR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL QVIVR’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO YOUR USE OF THE SERVICE, WHETHER IN CONTRACT OR TORT, EXCEED FIVE DOLLARS ($5). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

INDEMNIFICATION. To the maximum extent permitted by law, you agree to defend, indemnify and hold Qvivr and its affiliates, officers, directors, employees, agents, and licensors harmless from any and all claims, suits, losses, liability, costs or expenses (including, but not limited to reasonable attorneys fees) arising from or incurred as a result of your use of the App or any breach by you of this EULA.

MISCELLANEOUS. (a) This EULA and all the policies referenced herein constitute the entire agreement between Qvivr and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of Qvivr. (b) The section titles in this EULA are provided solely for convenience and have no legal or contractual significance. (c) This EULA shall be governed by and interpreted under the laws of the State of California regardless of your country of origin or where you access the Services, and without regard to its conflicts of laws provisions or the United Nations Convention for the International Sale of Goods. All actions relating to this EULA and the App shall be brought in a state or federal court located in San Francisco County, California. (d) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. (e) If for any reason a court of competent jurisdiction finds any provision of his EULA or portion thereof, to be unlawful, void or unenforceable, that provision of this EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. (f) You may not assign your rights under this EULA to any party without Qvivr’s consent.

NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Qvivr, Inc. only, not with Apple, and Apple is not responsible for the App and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If Qvivr provides a translation of the English language version of this EULA is provided, the translation is provided solely for convenience, and the English version shall prevail.

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