S.T. Swimm Tech LTD. and/or any of its affiliates (“Swimm”) provides a solution that assists in onboarding software developers codebase knowledge sharing (the “Solution”). These Terms and Conditions (the “Agreement”) govern the access and use of the Solution and any proprietary technology of Swimm incorporated therein by third party customers (a "Customer", “you” or “your”).
Please read this Agreement carefully. This Agreement governs your use of the Solution. You must accept this Agreement prior to using the Solution. By using the Solution, you signify your assent to this Agreement. Changes may be made to this Agreement from time to time. Your continued use of the Solution subsequent to such changes will be deemed your acceptance to amended or updated terms. If you do not agree to any of the terms of this Agreement, please do not use the 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 may be subject to additional terms and conditions and/or agreements, which you may choose to accept or reject (and therefore not use such other versions), at your sole discretion.
DISCLAIMER: CUSTOMER UNDERSTANDS THAT THE SOLUTION IS IN BETA STAGE AND HAS NOT BEEN SUBJECT TO FULL QUALITY ASSURANCE PROCEDURES AND MAY CONTAIN DEFECTS.
NOW, THEREFORE, the parties hereby agree as follows:
- Solution. Subject to the terms and conditions of this Agreement, Swimm shall provide Customer with access to the Solution on a non-exclusive basis for the Term of this Agreement. Customer may use the 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 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 Solution will not conflict with any legal, regulatory or contractual obligations of Customer.
- 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. Customer may not use Solution in a way which imposes an undue burden on or disrupts Swimm’s systems. If Swimm decides, in its sole discretion, that Customer’s use is disruptive or burdensome, Swimm may terminate Customer’s license of the Solution and/or impose additional restrictions thereon.
- Data; Privacy. In order to provide the Solution and associated analytics, Swimm collects certain data regarding the use of the Solution by Customer's individual end users, including regarding how the 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 Solution, including with respect to processing of Customer Data by Swimm. Swimm analyzes all Customer Data in order to provide Customer with the 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 or anonymous data, which may be used by Swimm for the purpose of improving the 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 Customer 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.
- Intellectual Property. Swimm has all right, title and interest in all versions of the 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.
- 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 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.
- Additional Terms and Payment and Limitation of Use. Some versions of the Solution are provided for free and some versions require payment, all in the sole discretion of Swimm. Please see the Commercial Terms, appended hereto as Appendix A, as updated from time to time, for details about the various plans (the “Plan/s”). Customer will be required to choose one of the versions of the Solution and/or Plans at the “check-out” interface and to comply with the applicable terms as specified in the Commercial Terms. Swimm may at any time add, change and/or cancel the requirements to make payments and/or change the terms of providing any version of the Solution and/or any Plan. Customer is responsible for any tax consequences to Customer of using the Solution.
- 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 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 to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
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 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, indemnify and hold Swimm (and its affiliates, officers, directors, agents and employees) harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable 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.
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 Solution. The entire liability of Swimm (or its directors, officers, affiliates, agents or employees) hereunder or in respect of the software and the Solution shall not exceed the total amount Customer has actually paid to Swimm in respect of the Solution. As such, if Customer has not paid for the Solution, Swimm will not have any liability to Customer whatsoever.
10. Term. This Agreement will be in effect as of the date it is accepted and continue in effect for one-month periods, with automatic renewals, until terminated pursuant to the terms and conditions. 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 10 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 Solution. Sections 2 – 12 of this Agreement and the Commercial Terms 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 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.
Commercial Terms for Solution
- Free Tier Version of the Solution: Use of the Free Tier Version of the Solution will be limited to a maximum of 15 users, usage of 1 repository within the product and 1 workspace.
- Open Source Version of the Solution: Customer is not required to make payment in respect of the use of the Open Source Version of the Solution solely with respect to Open Source Projects. Customer is responsible for any tax consequences to Customer of using the Open Source Version of the Solution. For purposes of this Agreement, an "Open Source Project" means software the source code of which is made publicly available pursuant to an Open Source License, where an "Open Source License" means any license that is certified as such by the Open Source Initiative. The Open Source Version of the Solution is not limited to a certain amount of users, provided however that Swimm reserves the right to impose a user limitation by provision of 60 days prior written notice. For clarity, any use of the Open Source Version of the Solution with respect to software that is not an Open Source Project is not permitted under the terms of the Agreement.
- Paid Version of the Solution:
a. Subscription Terms
Fees are specified at the Solution interface “check-out” and must be paid in advance. Amounts set forth therein do not include applicable VAT or other taxes, payment of which shall be made separately. Customer shall make payment of amounts due without withholding or deduction. Late payments are subject to interest at the rate of 1% per month or, if lower, the maximum amount permitted under applicable law. If Customer fails to pay the applicable fees within 72 hours from the due date, Swimm will freeze the Customer’s access to the Solution. Allowing Customer access after such freezing shall be in Swimm’s sole discretion.
b. Swimm Early Stage Startup Program
The customer can apply to Swimm in order to find out if it is eligible for the Swimm Early Stage Startup Program of the Solution. Such Customer will be required to undertake that it (i) is not an existing paying Customer of Swimm; (ii) has raised less than US $10,000,000 in investments and (iii) employs fewer than 15 developers. For the avoidance of doubt, acceptance of any Customer for the Swimm Early Stage Startup Program of the Solution is at Swimm’s sole discretion and Swimm may reject any entity even if it fulfills the requirements listed above. Swimm will send an email notification to a Customer regarding approval for the Swimm Early Stage Startup Program of the Solution. An approved Customer will only be required to pay US $15 for the first 15 users. Customers will pay the regular rate, as specified at the Solution interface “check-out” for any users above the first 15 users for which they are paying the Start-up rates. In addition to the publicity terms in Section 11 of the Agreement, each Customer participating in the Swimm Early Stage Startup Program for the Solution agrees to perform a testimonial with Swimm about using the Solution.
c. Changes in Fees
We may, upon any notice required by applicable law, change the fees for the Solution at any time or require new fees or charges. Such changes will be effective at the beginning of the following month upon informing the customer via email or any other form of contact.
d. Payment of Fees
Your Plan will renew automatically and continue month-to-month unless and until you cancel your Plan or we terminate it, in each case pursuant to the terms of this Agreement (see Section e below (Account Cancellation) of these Terms and Section 10 (Term and Termination) and Section 2 (Restrictions) of the Agreement). You must cancel your Plan before it renews in order to avoid fees due under the next billing cycle. For the avoidance of doubt, even after cancellation or termination in the middle of the month, the Customer will be required to continue the payment until the end of that month. To view the specific details of your Plan, including the commencement date of your next renewal period, approach your direct contact at Swimm. We will bill the fees due under your Plan to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts.
We reserve the right to deactivate your access to the Solution for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.
e. Credit Card Payments
All fees for your Plan will be billed to your credit card. You authorize the card issuer to pay any amounts described herein and in your Plan and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number and expiration date) to keep your account current, complete and accurate, and you must promptly notify Swimm if your credit card is lost or stolen, or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your username or password). You authorize us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.
f. Payment Terms, Refunds, and Increase and Decrease users Terms
The fees for your Plan are billed in advance, are non-refundable, and automatically renew on a monthly basis, as specified in your Plan. No refunds or credits will be provided for partial months of the service, any decrease in the number of users, or for months unused on a subscription.
If you decrease the number of users in your Plan, your credit card will automatically be charged at the new rate beginning with your next billing cycle.
If you increase the number of users in your Plan level, or upgrade your Plan, your credit card will immediately be charged a prorated amount reflecting the increased rate. Additionally, you will be charged the full amount of the new rate beginning with your next billing cycle.
Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.
g. Account Cancellation
To cancel your Plan, please approach your contact at Swimm by email (firstname.lastname@example.org).
If you cancel your Plan pursuant to the terms of the Agreement before the end of your current pre-paid period, you will not be charged again for your Plan beginning with the next billing cycle. If you cancel your Plan, you will lose all access, upon the expiration of your current pre-paid period, to the Solution (see Section 10 (Term and Termination) for additional details).
For the Paid Version of the Solution, Swimm shall cause the Solution to be available at least 99.00% of the time measured over each calendar month during the term, excluding scheduled maintenance.