Swimm Services Agreement
Swimm provides a solution that assists in onboarding and training software developers (the "Solution"). This Agreement governs the access and use of the alpha version of the Solution (the "Alpha Solution") and any proprietary technology of Swimm incorporated therein by third party customers (a "Customer").
Please read these Terms carefully. These Terms govern Your use of the Alpha Solution. You must accept these Terms prior to using the Alpha Solution. By using the Alpha Solution, You signify Your assent to these Terms. Changes may be made to these Terms from time to time. Your continued use of the Alpha Solution subsequent to such changes will be deemed Your acceptance to amended or updated terms. If You do not agree to any of these Terms, please do not use the Alpha Solution. Any individual accepting this Agreement on behalf of Customer represents and warrants that s/he is authorized to accept this Agreement on behalf of Customer and legally bind Customer to the terms and conditions set forth herein. Use of other versions of the Solution other than the Alpha Solution may be subject to additional terms and conditions, which you may choose to accept or reject (and therefore not use such other versions) in your sole discretion.
NOW, THEREFORE, the parties hereby agree as follows:
1. Solution. Subject to the terms and conditions of this Agreement, Swimm shall provide Customer with access to the Alpha Solution on a non-exclusive basis for the Term of this Agreement. Customer may use the Alpha Solution on a non-exclusive basis solely for its internal purposes. Customer shall not be entitled to any other software (including any other executable or source code) from Swimm. No licenses or rights are granted herein by estoppel or by implication. Customer represents that it has all necessary authority to enter into this Agreement and that the execution of this Agreement and the receipt of the Alpha Solution will not conflict with any legal, regulatory or contractual obligations of Customer.
2. Restrictions. Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, any version of the Solution; (b) modify any version of the Solution, (c) sublicense, sell, distribute or provide any version of the Solution to any third party, or (d) bypass any security measure or access control measure of any version of the Solution or (e) use any version of the Solution to provide services to any third party, including as part of a service bureau or timeshare arrangement. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform Swimm in writing in each instance prior to engaging in the activities set forth above.
3. Data; Privacy. In order to provide the Alpha Solution and associated analytics, Swimm collects certain data regarding the use of the Alpha Solution by Customer's individual end users, including regarding how the Alpha Solution is used, accessed and developed by employees and service providers of Customer (the "Customer Data"). All Customer Data is the confidential information of Customer and, except as set forth in this Agreement, Swimm shall not disclose such Customer Data to third parties or use such Customer Data except to provide services to Customer. Customer represents and warrants that it has the right to provide Swimm with access to all Customer Data. Customer shall provide its employees and service providers with all notices required under law regarding the use of the Alpha Solution. Swimm analyzes all Customer Data 2 in order to provide Customer with the Alpha Solution, including for the purposes of generating analysis and reports for the Customer. In addition, Swimm may use Customer Data for the purpose of generating aggregate anonymous data, which may be used by Swimm for the purpose of improving the Alpha Solution, including the algorithms and models used by the Solution. Swimm will implement reasonable security measures appropriate to the nature of the Customer Data including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Customer Data. Swimm may disclose Data to the extent required by applicable law or to cooperate with a law enforcement investigation or to enforce its rights under this Agreement. Swimm may transfer all Customer Data to jurisdictions other than the jurisdiction of the Customer.
4. Intellectual Property. Swimm has all right, title and interest in all versions of the Solution (including the Alpha Solution), including all enhancements, improvements and modifications thereof ("Swimm Property"). Swimm does not request Customer’s feedback regarding the Swimm Property. Notwithstanding the foregoing, if Customer provides Swimm with any feedback regarding the Swimm Property, Swimm may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
5. Confidentiality. Either party (a "Disclosing Party") may disclose to the other party (a "Receiving Party") certain confidential information regarding its technology and business ("Confidential Information"). Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its provision or use of the Alpha Solution. Confidential Information shall not include information that Receiving Party can show (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. All pricing information herein and all non-public information in respect of any version of the Solution shall be deemed the Confidential Information of Swimm. All information regarding the codebase of Customer shall be deemed the Confidential Information of Customer.
6. Payment. Customer is not required to make payment in respect of the use of the Alpha Solution. Use of other versions of the Solution may be subject to payment, in the sole discretion of Swimm.
7. Warranties; Disclaimer. Each party warrants that it has full corporate power and authority to execute this Agreement and to perform its obligations hereunder; and all corporate action necessary for the authorization, execution, delivery and performance of this Agreement by it have been taken. Swimm represents and warrants that to its best knowledge the Alpha Solution does not infringe the intellectual property rights of any third party. Subject to the foregoing, all versions of the Solution are provided "as is". To the maximum extent permitted by applicable law, Swimm disclaims all implied and statutory warranties, including, but not limited 3 to, any implied warranty of merchantability, fitness for a particular purpose or noninfringement.
8.1 Swimm Indemnification Obligations. Swimm shall defend, indemnify and hold Customer harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Customer may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party against Customer arising from any claims that the Alpha Solution infringes the intellectual property rights of a third party. Swimm shall not have any liability to the extent any claim is the result of (a) Swimm's compliance with specifications provided by Customer, (b) the combination of any version of the Solution with other hardware, software or services not provided by Swimm, (c) the collection, use or transfer of Customer Data in compliance with this Agreement, or (d) Customer’s actions, omissions or breach of this Agreement. If any version of the Solution shall be the subject of an indemnifiable claim, or Swimm reasonably believes that any version of the Solution shall be the subject of an indemnifiable claim, Swimm may terminate this Agreement with written notice.
8.2 Customer Indemnification Obligations. Customer shall defend and indemnify Swimm (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Swimm may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from the provision by Customer of any data not in compliance with applicable law.
8.3 Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense.
9. Limitation of Liability. In no event shall Swimm (or its directors, officers, affiliates, agents or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to this Agreement or the Swimm Software or the Alpha Solution. The entire liability of Swimm (or its directors, officers, affiliates, agents or employees) hereunder or in respect of the software and the Alpha Solution shall not exceed the total amount Customer has actually paid to Swimm in respect of the Alpha Solution.
10. Term. This Agreement will be in effect as of the date it is accepted and continue in effect until terminated pursuant to the terms and conditions hereof (the "Evaluation Term"). 4 During the Evaluation Term, either party may terminate this Agreement upon 30 days prior written notice for any reason. Either party may terminate this Agreement upon written notice if the other party shall materially breach this Agreement and not cure such breach within 30 days of receipt of written notice thereof from the non-breaching Party. Upon any termination of this Agreement, Customer shall cease all use of the Alpha Solution. Sections 2 – 12 of this Agreement shall survive any termination or expiration thereof. Neither party shall have liability for the termination of this Agreement in accordance with its terms.
11. Publicity. Swimm may disclose that Customer is using the Alpha Solution, including by displaying Customer’s name and logo on Swimm’s website and other marketing materials. Customer may withdraw such consent with respect to future marketing materials by providing written notice to Swimm.
12. Miscellaneous. This Agreement together with its exhibits and any documents referenced herein constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any exhibit (including any SOW) or referenced document the terms of this Agreement shall govern unless expressly set forth otherwise in the applicable exhibit or referenced document. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement. Swimm may assign its rights or obligations under this Agreement to an affiliated company or to a purchaser of all or substantially all of Swimm’s assets or share capital, or to any company succeeding to Swimm’s business. Customer shall not assign any of its rights or obligations hereunder without Swimm’s prior written consent. Assignments in violation of the foregoing shall be void. This Agreement shall be governed by the laws of the State of New York, and the competent state or federal courts in New York County, New York shall have exclusive jurisdiction to hear any disputes arising hereunder. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement. Swimm may provide any notices required under this Agreement or any exhibits or documents referenced herein to the contact information provided by Customer as part of registration.