Terms And Conditions

Effective Date: November 10, 2022

PLEASE REVIEW THESE TERMS AND CONDITIONS CAREFULLY, AS THEY AFFECT YOUR RIGHTS.

Please review the following terms and conditions ("Terms") that govern your use of and access to (collectively, "Use") flexsealproducts.com and any Flex Seal brand mobile applications (collectively, our "Site"). By accessing or using the Site, you acknowledge and agree to follow and be bound by these Terms. If you do not agree to the Terms in their entirety, you are not authorized to use the Site, any products and/or services offered by Swift Response, LLC and/or Site in any manner or form whatsoever.

THESE TERMS INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. DETAILS ARE SET FORTH IN SECTION 21, BELOW.

1.     WEBSITE TERMS AND CONDITIONS GENERALLY.

The following sets forth the Terms for this Site which is operated by Swift Response, LLC (“Swift”). These Terms supersede any previous statement of such policies. Please read these Terms of Use carefully, as use of the Site constitutes your binding acceptance of these Terms of Use. Swift may modify, alter or update these Terms at any time without prior notice, and your subsequent use of the Site shall constitute your consent to any such modification, alteration or update. If you are accessing the Site as a representative of an organization, these Terms bind both you individually and the organization, and references to "you" and "your" shall be construed to apply to you individually and the organization.

2.     PERMITED USED.

The Site is made available on an “as is” basis by Swift for the convenience of its customers and users. The Site is intended for use by persons 18 years of age or older. You may access the Site and all Site content, including, without limitation, text, images, hosted software, sound files, video and other content (collectively, “Content”) solely for the purposes of receiving information about Swift’s business and products, communicating with Swift, and otherwise as stated on the Site. As a condition of your use of the Site, you may not use the Site or any Content for any purpose that is unlawful or prohibited by these Terms of Use. You may not use the Site in any manner that could damage, disable, overload or impair the operation of the Site or use by third parties. You may not post or otherwise transmit to or from the Site by any means any defamatory, libelous, obscene, unlawful, or pornographic material or any other material or information which could result in any civil or criminal liability. Swift may monitor access to the Site and may, at any time and in its sole discretion, terminate or prohibit your access to the Site.

3.     SHIPPING POLICY.

If an order is placed Monday to Friday, in most cases, they will be processed and shipped within 24 to 48 hours. Orders placed on a Saturday or Sunday, are usually shipped first thing Monday morning. Unfortunately at this time, we do not ship to Alaska or Hawaii. We use FEDEX and UPS as our shipping carriers.

4.     OUR FEEDBACK TO YOU.

In the event that we or any of our representatives provide you with any suggestions, comments, feedback, advice, information, or recommendations (collectively, “Feedback”), YOU ACKNOWLEDGE AND AGREE THAT:

(i) ANY SUCH FEEDBACK IS PROVIDED BY US OR OUR REPRESENTATIVES AS-IS, WITHOUT ANY WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED OR OTHERWISE); (ii) YOU USE ALL SUCH FEEDBACK AT YOUR SOLE RISK AND EXPENSE; AND (iii) WE WILL IN NO EVENT BE LIABLE, AND HEREBY DISCLAIM ANY AND ALL LIABILITY, FOR ANY DAMAGES INCURRED BY YOU OR ANY THIRD PARTY AS A RESULT OF SUCH FEEDBACK OR YOUR OR ANY THIRD PARTY’S USE THEREOF OR RELIANCE THEREON.

5.     TALENT RELEASE.

In the event that you provide your consent and authorization to us to use your use your Materials (as defined below), the following terms apply. You hereby consent, authorize and give us and our third party agents, employees, representatives and consultants permission to make use of, license or assign the use of, your stories, notes, submissions, image, appearance, likeness, voice and/or photograph, and other reproductions of any of these, in still photographs, video, publications, audio, sound recordings, web sites, public displays, promotional material and events, printed materials and books for media consumption, electronic and other media and/or motion pictures (collectively, the “Materials”). Additionally, you hereby release and discharge us and our officers, managers, members, employees, and agents, from any and all suits, claims, causes of action, complaints, obligations, demands or liabilities of any kind, including without limitation all claims for copyright infringement, invasion of privacy, right of publicity, and defamation, whether in law or in equity, direct or indirect, known or unknown, that may be related to, or may be in connection with, or may arise out of the use of the Materials. You agree that you will not make any claim or action allow or authorize any third party to make any claim or action on your behalf, arising out of or relating to the any of the foregoing. You understand and agree that you will receive no compensation of any kind, monetary or otherwise, on account of or arising from the production, publication, recording, rebroadcasting, or other use of the Materials, but that you have nonetheless received adequate consideration for my agreement to these terms, most notably the potential publicity and promotional value to me from our possible display, publication, or other use and dissemination of my content. We will have complete ownership of the Materials produced or published and will have the exclusive right and license to make such use of such Materials (in whole or in part) as we wish, including, but not limited to, the right of performance, display, reproduction and distribution in all media, and the right to create, perform, display and distribute derivative works of the Materials.

You are above the age of 18, and have read the foregoing and fully understand its contents. These terms will be binding upon me, my heirs, legal representatives and assigns. These terms will be governed in accordance with the laws of the State of Florida, without regard to any principles of conflict of laws.

6.     MEDIA CONTACTS AND INFLUENCERS.

We may obtain contact details and other personal information regarding media contacts and influencers from a variety of third-party sources, including Cision US. The information that we will receive depends on the third-party source and your privacy settings with that third-party. All information that you disclose to third parties will be subject to the privacy policies and practices of such third parties. You should review the privacy policies and practices of such third parties prior to disclosing information to them. Cision US’s privacy notice is located at www.cision.com/us/legal/privacy-policy .

7.     CONTESTS AND SWEEPSTAKES.

In the event that we, or our third-party service providers mail, e-mail, contact you by other means notify you (including by our promotion on our website or social media channels) of sweepstakes, contests or other similar promotions (collectively, “Promotions”) the following terms apply. All Promotions may be governed by any associated rules posted in connection with such Promotions, which are expressly incorporated by reference into these terms. Please refer to and read carefully such other terms and conditions. To the extent that such other terms and conditions conflict with these terms, such other terms and conditions will apply and control. Promotions may require you to provide certain information, including personally identifiable information, in order to participate. Each Promotion is: (i) void where prohibited by applicable laws, regulations or rules; and (ii) subject to availability and/or while stock or supplies lasts. We may, in our sole discretion and without any notice to you, alter, change, withdraw or cancel any Promotion, or any person’s participation in any Promotion, at any time for any reason. For instance, we may disqualify entries for any Promotion that are late, misdirected, incomplete, corrupted, lost, illegible or invalid or where appropriate parental consent has not been provided. Unless the associated rules posted in connection with a Promotion provide otherwise: (a) entries are limited to one per person and entries via agents or third parties or the use of multiple identities are not permitted; (b) use of automated entries, votes or other programs is prohibited and all such entries (or votes) will be disqualified; (c) Promotions are not open to our employees (or their immediate families) or anyone else professionally associated with such Promotion; (d) you are solely responsible for all taxes in connection with your participation in any Promotion, except we reserve the right to withhold applicable taxes, and you agree to complete any required tax forms as reasonably requested by us; (e) no prize or entry in connection with a Promotion is transferable, refundable or negotiable, and no prize may be exchangeable for cash or any other benefit, except that we (or the party providing a prize) reserve the right to substitute a similar prize of equal or greater value; and (f) (i) your acceptance of a prize constitutes agreement to participate in reasonable publicity related to any Promotion and grants us an unconditional right to use your name, likeness, town or city and state, prize information and statements by you about the Promotion for publicity, advertising and promotional purposes, subject to applicable law, without any additional permission from, or compensation to, you whatsoever; and (ii) as a condition to receiving any prize in connection with any Promotion, you (or your parents or guardians) may be required to sign and return an affidavit of eligibility, liability release and publicity release. Our advertisement or other display of any Promotion on our website, social media channels or other mediums is not an offer to participate in the Promotion and does not trigger any obligation to accept your participation or change the odds of winning in any way.

8.     COPYRIGHT; ALL RIGHTS RESERVED.

Swift holds copyright in the Site and all Content and expressly reserves all rights in such material arising under applicable law. All Content is protected under United States and international copyright laws and treaty provisions. Except as expressly provided in these Terms of Use, you may not copy, distribute, republish, reproduce, download, display, or transmit any Content in any form for commercial use without the prior written permission of Swift. Individual visitors to the Site may download or print one copy of Content published on the Site solely for their personal, non-commercial use, provided they do not modify the Content and that they refrain from deleting or altering any copyright or other proprietary notices contained in the Content. This permission shall be deemed revoked automatically if you breach any of these Terms of Use.

9.     TRADEMARKS.

Except as otherwise expressly disclosed on the Site, Swift owns all right, title, and interests in and to all trademarks, service marks, and logos (collectively, "Trademarks") displayed on the Site, whether registered or unregistered. Swift shall under no circumstances be deemed to have granted you any license, either express or implied, in or to any of the Trademarks as a consequence of your use of the Site. You may not use any of the Trademarks without prior written permission of Swift. Because the Trademarks are among Swift’s most valuable business assets, Swift will pursue its legal remedies in the event of any unauthorized use or misuse of any of the Trademarks.

10.     SOFTWARE; PRODUCTS; SERVICES.

Any software that is available for download from the Site is the copyrighted property of Swift or its suppliers. Use and reproduction of and warranties as to such software, if any, are governed by the terms of the license agreement applicable to such software. Use of and warranties as to any other product or service purchased by you using, or in connection with, the Site, if any, are governed by the terms of the agreement applicable to that product or service.

11.     LINKING.

You may link to the Site home page, but you may not link to any other page on the Site without the prior written consent of Swift (which Swift reserves the right to withdraw at any time in its discretion). You may not use any of the Trademarks or any of Swift's other distinctive graphics, video, or audio material in your links. You may not link in any manner reasonably likely to (i) imply affiliation with or endorsement or sponsorship by Swift; (ii) cause confusion, mistake, or deception; (iii) dilute any of the Trademarks; or (iv) otherwise violate applicable law. You must remove any link to the Site immediately on request from Swift.

12.     RESTRICTED INFORMATION.

Certain restricted information may be made available on the Site only to licensed customers of Swift that are registered to receive information via passwords issued by Swift. Such restricted information shall constitute confidential and proprietary information of Swift. If you are a registered customer or a representative of a registered customer, Swift authorizes you to download, copy, distribute and use the restricted information for yourself or, if applicable, only within the customer organization, and only for the intended purposes authorized by Swift. Issuance of a registration password is conditioned on the customer's use of the information in accordance with the terms of its license or service agreement with Swift. You may not transfer your password to any unauthorized party. You shall immediately notify Swift of any unauthorized use of your password. You are responsible for use of your password. You may not attempt to gain unauthorized access to any Site information or area within the Site.

13.     THIRD PARTY INFORMATION AND WEBSITES.

Certain information made available on the Site may have been provided by third parties. Moreover, Swift may provide links to third party websites from the Site. Such information and links are provided solely for your convenience and do not necessarily constitute an endorsement of such websites or the products and services featured on such websites or any affiliation between Swift and the owners of such websites. Swift shall not be liable for the content of any such information or websites or any errors in or malfunction of such links. You acknowledge that all such information (whether data, text, software, music, sound, photographs, graphics, video, or other materials) are the sole responsibility of the originating party and that Swift neither has responsibility for nor guarantees the accuracy, integrity, or quality of such materials.

14.     AVAILABILITY.

Content on the Site may refer to products, programs or services that are not available in your location. Consult Swift representative for information about the products, programs and services that may be available to you.

15.     SUBMISSIONS.

You may wish to submit to Swift ideas for new products, product enhancements, technologies, processes, materials, or marketing or promotional materials (collectively, “Submissions”). Be advised, however, that all Submissions shall be subject to the provisions set forth in this section of these Terms of Use, and you shall be deemed to have agreed to all such provisions upon making any Submission to Swift. Swift assumes no duty to review or investigate any Submission. Moreover, since Swift is in constant development of new products, product enhancements, technologies, processes, materials, and marketing and promotional materials, any such materials that you submit to Swift may be similar to or otherwise contemplated by those already under development or consideration by Swift. Accordingly, all Submissions will be treated as non-confidential and non-proprietary, will automatically become Swift’s property, and may be used by Swift and its affiliates for any purpose whatsoever, including without limitation the development and/or provision of products and services. Swift shall be free to publish, use, modify, publicly perform, publicly display, reproduce, and distribute any Submission on and through the Site and any and all other media for any purpose whatsoever without restriction or any obligation to compensate you. Moreover, you shall be deemed to have waived all claims and shall refrain from bringing any legal action against Swift arising in any way from any use Swift may make of any Submission.

16.     FEEDBACK.

Swift welcomes user feedback regarding its business and products (“Feedback”). In providing Feedback, however, please be mindful of Swift’s submission policy, set forth in these Terms of Use. Please limit Feedback to Swift’s existing products, promotions, and business and refrain from including any content prohibited by these Terms of Use. All Feedback shall be deemed non-confidential and non-proprietary, and Swift shall be free to use it on an unrestricted basis.

17.     COUPONS.

Swift may allow consumers to download discount coupons from the Site. All such coupon offers shall be subject to all applicable rules and regulations. Most coupons do not apply to already discount items or bundles.

18.     DISCLAIMERS; LIABILITY LIMITATIONS AND EXCLUSIONS.

SWIFT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SITE, ITS OPERATION, OR YOUR USE OF THE SITE AND EXPRESS DISCLAIMS ALL SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF THE INFORMATION, AND THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ADDITIONALLY, SWIFT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, UP-TIME, FUNCTIONALITY, ERROR-FREE NATURE OR RELIABILITY OF THE SITE, THE INTERNET, OR OTHER TECHNOLOGY UTILIZED TO PRESENT, ACCESS OR UTILIZE THE SITE, NOR DOES IT WARRANT THAT THE SITE OR THE SERVERS MAKING THE SITE AVAILABLE SHALL BE FREE OF COMPUTER VIRUSES OR OTHER MALICIOUS CONTENT. RATHER, SWIFT EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. SWIFT RESERVES THE RIGHT TO MODIFY, SUSPEND OR DISCONTINUE THE OFFERING OF THE SITE AT ANY TIME FOR ANY REASON WITHOUT PRIOR NOTICE. FURTHER, SWIFT CANNOT GUARANTEE THE SECURITY OR INTEGRITY OF DATA DURING TRANSMISSION AND STORAGE AND SHALL HAVE NO LIABILITY FOR BREACHES OF SECURITY OR INTEGRITY OR THIRD-PARTY INTERCEPTION IN TRANSIT, NOR FOR ANY DAMAGE WHICH MAY RESULT TO YOUR COMPUTER OR OTHER PROPERTY BY YOUR USE OF THE SITE. NEITHER SWIFT NOR ANY OF ITS AFFILIATES OR SUPPLIERS OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS (COLLECTIVELY, “RELEASED PARTIES”) SHALL BE LIABLE FOR ANY LOSS OR LIABILITY RESULTING, DIRECTLY OR INDIRECTLY, FROM DELAYS OR INTERRUPTIONS DUE TO ELECTRONIC OR MECHANICAL EQUIPMENT FAILURES, DENIAL OF SERVICE ATTACKS, DATA PROCESSING FAILURES, TELECOMMUNICATIONS OR INTERNET PROBLEMS, UTILITY FAILURES OR PROBLEMS, DEFECTS, WEATHER, STRIKES, WALKOUTS, FIRE, ACTS OF GOD, RIOTS, ARMED CONFLICTS, ACTS OF WAR OR OTHER LIKE CAUSES BEYOND THE REASONABLE CONTROL OF SWIFT. SWIFT MAY DISCONTINUE PROVIDING ACCESS TO THE SITE AT ANY TIME. IN NO EVENT SHALL ANY OF THE RELEASED PARTIES BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST DATA, LOST PROFITS, LOST REVENUE OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF, THE SITE OR ANY SITE LINKED TO THE SITE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, NONE OF THE RELEASED PARTIES SHALL BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION OR ANY OTHER LAW OR THEORY OF LIABILITY. THE FOREGOING DAMAGE EXCLUSIONS SHALL APPLY EVEN IF SWIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

19.     INDEMNIFICATION.

By using the Site, you agree to indemnify and hold harmless all of the Released Parties from and against any loss, claim, damage, obligation, liability, cost or expense (including, without limitation, reasonable attorneys’ fees and costs of any investigation or preparation) arising out of or in connection with any actual or threatened claim, suit, action or proceeding by any person based on or arising out any use by you or an account or computer owned by you of the Site or the Content or your provision of any Submission or User Content to Swift.

20.     TEXT MESSAGING ("SMS") TERMS OF USE.

Swift offers its customers mobile alerts about order and shipping updates and other marketing messages about events, new products, and other offers by SMS message (the "Service"). By participating in the Service, you are agreeing to these Terms of Use and to the Privacy Policy. When you opt into our SMS program, you understand and agree that the Website Terms are incorporated into, and become part of, the SMS Terms of Use (and both documents are together, the “Terms”). THE TERMS CONTAIN AN ARBITRATION AGREEMENT, JURY AND CLASS ACTION WAIVERS, LIMITATIONS ON OUR LIABILITY, AND OTHER PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS REGARDING THE SMS PROGRAM. PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS.

     A.     Signing Up and Opting-In to the Service.

Enrollment in the Service requires you to provide your mobile phone number and electronic signature to agree to these Terms. You may not enroll if you are under 18 years old (except in Alabama and Nebraska, 19 years old). Swift Response, LLC reserves the right to stop offering the Service at any time with or without notice.

By opting into the Service, you:

     • Authorize Swift Response, LLC to use auto dialer or non-auto dialer technology to send text messages to the mobile phone number associated with your opt-in (i.e., the number listed on the opt-in form or, if none, the number from which you send the opt-in, or, if none, the number on file for the account associated with your opt-in).

     • Acknowledge that you do not have to agree to receive messages as a condition of purchase.

     • Confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt in.

     • Consent to the use of an electronic record to document your opt-in. To request a free paper or email copy of the opt-in or to update our records with your contact information, please call 833-411-3539. To view and retain an electronic copy of these Terms or the rest of your opt-in, you will need (i) a device (such as a computer or mobile phone) with Internet access, and (ii) and either a printer or storage space on such device. For an email copy, you'll also need an email account you can access from the device, along with a browser or other software that can display the emails.

     B.     Messages You May Receive.

Once you affirm your choice to opt into the Service, your message frequency may vary. You may receive an alert when:

     • you are welcomed into the Service

     • an order has been placed

     • an order has been delivered

     • an item or items has shipped

     • there are general marketing or promotions

     • sweepstakes or contests

     • an item has been left in your online cart or site abandonment

     C.     Charges and Carriers.

Message and data rates may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your phone's pricing plan and the charges for sending and receiving text messages. You acknowledge that you are responsible for any message, data or other charges incurred (usage, subscription, etc.) as a result of using the Service.

Supported carriers are AT&T, T-Mobile®, Verizon Wireless, Sprint, Boost, U.S. Cellular®, MetroPCS®, InterOp, Cellcom, C Spire Wireless, Cricket, Virgin Mobile and others. The Service may not be available on all wireless carriers. Swift Response, LLC may add or remove any wireless carrier from the Service at any time without notice. Swift Response, LLC. and mobile carriers are not responsible for any undue delays, failure of delivery, or errors in messages.

     D.     To Stop the Service.

To stop receiving text messages from Swift Response, LLC, reply STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode, you will receive one additional message confirming that your request has been processed. You acknowledge that the text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that Swift Response, LLC and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from Swift Response, LLC through any other programs you have joined until you separately unsubscribe from those programs. These Terms still will apply if you withdraw the consent mentioned above or opt out of the Service.

     E.     Help and Questions.

You can text HELP for help at any time. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.

     F.     Mobile Phone Number Change.

In the event that you change or deactivate your mobile phone number, you agree to notify Swift Response, LLC. by emailing order-support@swiftdrtv.com or calling 833-411-3539.

     G.     Data and Message Frequency.

Data obtained from you in connection with this text messaging service may include your mobile phone number, your carrier’s name, and the date time and content of your messages and other information you provide to Swift Response, LLC as part of this service. Swift Response, LLC may use this information to contact you and provide services you request from Swift Response, LLC. Swift Response, LLC may also use this information as described in the subscription list you’ve enrolled in. Swift Response, LLC may use an automatic dialing system to deliver text messages to you. If you have questions regarding our privacy practices, please read our privacy policy at PRIVACY POLICY.

As always, message and data rates may apply for any messages sent to you from us and to us from you. Swift Response, LLC reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. Swift Response, LLC also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so. This does not include non-autodialed messages such as those from sales associates, conversations with “HELP” providers, or package delivery updates. If you have any questions about your text or data plan, it is best to contact your wireless provider. For questions about the services Swift Response, LLC provides, contact us at 833-411-3539.

Swift Response, LLC will not be liable for any delays in the receipt of any text messages. Delivery is subject to effective transmission from your network operator.

21.     DISPUTES.

Please read this section carefully. Except as the Terms otherwise provide, you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action.

     

A.     Agreement to Binding Arbitration.

Before initiating arbitration, you acknowledge and agree that you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us including, but not limited to, information or representations related to our products and upon which you rely. You may seek to resolve any customer concerns through our Support services at 833-411-3539 or send the written description by U.S. Mail to: 2690 Weston Rd Ste 200, Weston, FL, 33331; Attn: General Counsel. You agree to negotiate with us in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 30 days after our receipt of your written dispute, you agree to the dispute resolution provisions below.

By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Swift Response, LLC, the website, our services, the Giveaways or the Sweepstakes, on an individual basis in arbitration. You and we agree that any disputes between us (including any disputes between you and a third-party agent of Swift Response, LCC) will be resolved through binding and final arbitration and not in a court, except that you may assert claims in small claims court if your claims qualify. This includes, but is not limited to, (a) any dispute, claims, or controversy arising out of or relating to any part of the Terms, (b) the existence, breach, termination, enforcement, interpretation or validity thereof; or (c) your access to or use of the Swift Response, LLC’s services or products at any time. Such dispute shall be submitted to the American Arbitration Association (“AAA”) for individual arbitration in the county of your billing address (or such other location as you and we mutually agree) and shall be before one arbitrator. The arbitration shall be administered by the AAA pursuant to its Consumer Arbitration Rules and Procedures, only as modified by this agreement.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

By agreeing to individual arbitration, you understand and agree that you are waiving your right to maintain other available resolution processes, such as a court action or administrative proceeding, to settle any disputes or claims. The rules in arbitration are different. There is no judge or jury. Although review is limited, an arbitrator can award on an individual basis the same damages and relief as would be available in court, and must enforce the same limitations stated in these Terms as a court would.

Notwithstanding the foregoing, either party may bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyright rights, trademarks, trade secrets, patents or other intellectual property rights.

     

B.     No Class Action.

You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. This means that you and we each agree to arbitrate in our individual capacities only, not as a representative of a class, a member of a class, or a Private Attorney General. Likewise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

     

C.     Rules and Governing Law.

The arbitration will be administered by the AAA in accordance with the Consumer Arbitration Rules then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at https://www.adr.org/sites/default/files/Consumer_Rules_Web_1.pdf. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms.

     

D.     Federal Arbitration Act.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Florida without regard to its conflict of laws provisions.

     

E.     Arbitration Process.

To begin an arbitration proceeding, after satisfying the condition precedent identified above, you must (1) send a verified and personally signed demand for arbitration that describes (a) the nature and basis of your claims, and (b) the nature and basis of the relief sought, including a detailed calculation to: Swift Response c/o Legal Department 2690 Weston Road, Weston, FL 33331; email: order-support@swiftdrtv.com, and (2) contact the AAA and follow the appropriate procedures with the AAA to commence the arbitration. The AAA consumer rules for arbitration will apply as modified by this Dispute Resolution section. Payment of all filing, administration and arbitrator fees will be governed by the AAA's applicable Consumer Rules. The parties shall be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator. The arbitration may be conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location as set forth in the AAA rules. If requested, you shall personally appear (with your counsel if you have one) at an initial telephone conference with a case manager before an arbitrator is appointed. Notwithstanding anything to the contrary, Swift Response, LLC will pay all fees and costs that we are required by law to pay.

Unless you and we agree otherwise in writing, in the event that any provision of this section is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Broward County, Florida. You and we will submit to the personal jurisdiction of the courts located within Broward County, Florida for the purpose of litigating all such claims or disputes.

     

F.     Arbitrator’s Decision.

Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. Judgment on the award may be entered in any court having competent jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. An arbitrator’s decision shall be final and binding on all parties.

Judgment on any award rendered by the arbitrator is final, binding and conclusive on you and us and your and our respective administrators, executors, legal representatives, successors and assigns.

With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law.

     

G.     Opt-Out Procedure Applicable To All Consumers.

You can decline this agreement to arbitrate by emailing us at order-support@swiftdrtv.com and providing the requested information as follows: (1) Your Name; (2) the URL of the Terms; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept these Terms.

22.     MISCELLANEOUS PROVISIONS.

The provisions of these Terms of Use regarding ownership, disclaimers, indemnification, governing law and forum shall continue in effect indefinitely. Each notice to Swift in connection with these Terms of Use shall be provided in writing, and notice shall be deemed to have been given on the date Swift receives it.

23.     PRIVACY.

For information regarding Swift’s information collection and use practices, please refer to Swift’s privacy policy, located at: https://www.flexsealproducts.com/privacy-policy. The Privacy Policy shall be deemed incorporated by reference in these Terms of Use.

24.     ENTIRE AGREEMENT.

These Terms of Use, together with the Privacy Policy, shall constitute the entire agreement between you and Swift regarding the use of the Site. The failure of Swift to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision.

25.     SEVERABILITY.

If any portion of these Terms are found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

26.     SWIFT RESPONSE MAP GUIDELINES.

Swift Response, LLC (“Swift”) has established a Minimum Advertising Pricing Policy (“MAPP”) for the Flex Seal Family of Products and all references to products covered by MAPP are to Swift’s TERM SHEET. Swift has unilaterally established this MAPP to identify the terms and conditions for advertising the sale of the Flex Seal Family of Products supplied by Swift. Swift reserves the right to refuse to sell all or a portion of its products to any Retailer that advertises in violations of this MAPP and specifically reserves the right in its sole and absolute discretion to decline to fulfill orders to Retailers that violates this MAPP. In connection with this MAPP, Swift identifies the following components of its policy:

• Swift may designate a MAPP for each and any of its Flex Seal Family of Products. Any advertisement by a Retailer of that product for sale at any price below the product’s MAPP will result in Swift exercising its right to refuse to fulfill orders of that product, or any other Flex Seal Family of Products to said Retailer. Swift has referenced this MAPP on its website (http://www.flexsealproducts.com/pages/terms-and-conditions) and shall provide this MAPP by distribution from its authorized sales representatives.

• Swift will enforce its MAPP and any product specific MAPP at its sole and absolute discretion and will decide unilaterally for itself what appropriate actions will be taken for violations of its MAPP or product specific MAPP, including the right to cancel orders and refuse to accept new orders from any Retailer that advertised a product at a net retail sales price less than the current MAPP retail price established by Swift.

• The MAPP and any product specific MAPP applies only to advertising prices. Neither the MAPP or any product specific MAPP applies to the actual retail price at which any products are sold by Retailer to an end-user and Swift specifically and expressly recognizes that Retailer may sell products during an actual sale to a customer at any price that Retailer and customer choose to establish. Each Distributor remains entirely free to determine its own resale price.

• All Retailers are free to communicate directly an actual sales price to a specific end-user or customer through individual sales calls or call-in prices or through the use of email newsletters to current customer database established by the Retailer.

• The MAPP is intended to apply to all advertisement of Flex Seal Family of Products in any and all media including, but not limited to, catalogues; newspapers and circulars; internet or similar electronic media as well as e-mails; television; flyers and road signs; radio; and all other types of advertising. Swift reserves the right to add additional mediums and actions which it determines in its sole discretion are designed to evade or avoid this MAPP or any product specific MAPP.

• The MAPP is not intended to apply to any in-store advertising that is displayed only in the store and not distributed outside the store and Retailers may set the actual in-store sales price for any product at any price said Retailer chooses to establish.

The MAPP is not intended to and does not set a maximum advertised price and Retailers are free to advertise products at any price equal to or in excess of the MAPP or the product specific MAPP. Advertisements that do not contain any actual prices will not violate the MAPP so long as the advertisement conforms to the MAPP requirements.

• Swift reserves the right to alter its TERM SHEET upon appropriate notice and to require compliance with new MAPP guidelines. The MAPP is effective June 9, 2017 and revised effective May 1, 2022

• No employee or officer of Swift is authorized to or has authority to alter the terms of the MAPP or the product specific MAPP orally. Only a written authorization from the Vice President of Finance may alter the terms of the MAPP or a product specific MAPP, and this MAPP may only be changed in writing authorized by the Vice President of Finance.

• Swift reserves the right to terminate all or partial sales of its products to any Retailer that fails to follow the MAPP or a product specific MAPP or takes steps to circumvent said policies.

• Swift shall enforce the MAPP solely and unilaterally, exercising its absolute discretion on actions it deems necessary in the event the MAPP is not followed, including the right to cancel orders or refuse to accept orders. Swift shall not use retailer specific complaints to enforce the MAPP but will instead rely on its own sole discretion and observations.

In policing this policy, Swift will be guided by the following penalties:

• 1st Violation: retailer will receive a written warning providing 48 hours to correct the violation. Failure to correct the violation within that time-frame may be considered a separate violation leading to additional penalties. 2nd Violation: retailer will be notified that subsequent violation of MAPP may result in termination of retailer relationship with Swift and cancelation of any outstanding orders.

• MAPP pricing is established by reference to Swift’s TERM SHEET.

• Swift will only allow Retailers to bundle Flex Seal products with other manufacturer’s goods with advanced notice and written approval obtained from: the Vice President of Finance.

• Swift will permit Retailers to offer “value-added” incentives in advertisements for Flex Seal Family of Products, as long as no mention of the monetary value is indicated for these value-added offers. To the extent Retailers wish to offer “value-added” incentives in advertisements having a price component, such activity will be permitted with advanced notice and written approval obtained from: the Vice President of Finance.

• Swift monitors the advertised prices of Retailers, either directly or through the use of third-parties. Retailers are expected to provide reasonable cooperation in any investigation, and failing to cooperate is a violation of this policy and may lead to sanctions.

     A.     Frequently Asked Questions:

Q: When will the MAPP take effect?

A: May 1, 2022.

Q: What types of advertisements are covered by the MAPP?

A: All pricing advertisements other than the following are covered:

• The MAPP is not intended to apply to in-store advertising (displays, banners or price markings);

• Distributor advertising at trade shows; individual customer specific communications such as emails, letters or texts responding to a customer inquiry; or web pages representing customer final point of purchase.

Q: Are non-pricing advertisements covered by the MAPP?

A: No. Advertisements without reference to price are not covered by the MAPP; nor are advertisements that encourage customers to “Call for pricing” or to request pricing by return communication provided that no advertisement suggest a price reduction contrary to MAPP.

Q: Does the MAPP dictate the price at which the Flex Seal Family of Products may be sold?

A: No. The MAPP is not intended to control, influence, determine, restrict or limit in any way the price at which Distributors sell the Flex Seal Family of Products to end-users or customers. The MAPP is intended to only provide restrictions on advertising.

Q: Does the MAPP relate to non-price terms and conditions of sale?

A: No. Terms and conditions of sale that do not specifically impact the advertised price such as free shipping or free returns are allowed as are advertisements of financing terms. Advertising offers of rebates or discounts based on sales volume or quantities that do impact advertised pricing would violate the MAPP.

Q: Where should questions or comments regarding the MAPP be directed?

A: Swift’s Vice President of Finance.

Q: Can I report violations of the MAPP from others to Swift?

A: No. Swift will monitor and enforce the MAPP at its sole and independent discretion.

Q: What happens when there is a violation of the MAPP?

A: As set forth above, violation of the MAPP will result in penalties in increasing severity as outlined below:

1st Violation: retailer will receive a written warning providing 48 hours to correct the violation. Failure to correct the violation within that time-frame may be considered a separate violation leading to additional penalties.

2nd Violation: retailer will be notified that subsequent violation of MAPP may result in termination of retailer relationship with Swift and cancelation of any outstanding orders.

Q: Is the MAPP subject to change?

A: Yes. Swift reserves the right at its sole discretion to modify, amend or cancel the MAPP at any time without advanced notice; however, any change to the MAPP will be communicated directly to Distributors and not go into effect until seven (7) business days after notification.