Master Subscription and Professional Services Agreement
This Master Subscription and Professional Services Agreement (this “Agreement”) describes your rights and responsibilities as a customer of Swimm. This Agreement is between you and S.T. Swimm Tech Ltd. and/or any of its affiliates (“Swimm”, ”we” or ”us”). ”You” or “Customer” means the entity you represent in accepting this Agreement or, if that does not apply, you individually.
If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “Sign Up” (or similar button or checkbox) that is presented to you.
PLEASE NOTE THAT IF YOU SIGN UP FOR SWIMM USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO SIGN UP WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS AGREEMENT, AND (C) THE WORD “YOU” OR “CUSTOMER” IN THIS AGREEMENT WILL REFER TO YOUR EMPLOYER OR THAT ENTITY. This Agreement are effective as of the date you first click “Sign Up” (or similar button or checkbox) or use or access Swimm, whichever is earlier (the “Effective Date”). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking “Sign Up” (or similar button or checkbox) at the time you register for Swimm, create a Swimm account, or place an Order Form.
“Account(s)” means an account enabling a User to access and use the Platform through User login credentials.
1. Definitions
“Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
“Background IP” means any intellectual property, materials and other content that Swimm provides to Customer in connection with its performance of Professional Services that (i) was in existence prior to performance of Swimm’s Professional Services obligations set forth in the applicable Order Form, (ii) is conceived or developed at any time wholly independently of such Professional Services or (iii) was otherwise not specifically created for Customer.
“Beta Services” means the features and/or functionality of the Solution that may be made available to Customer to try at its option at no additional charge and which are clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.
“Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Swimm’s Confidential Information shall include the Swimm Property and the terms of this Agreement and all Order Forms. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
“Customer Data” has the meaning set forth in Section 4(a) of this Agreement.
“Customer Property” means any content (including text, images, illustrations, charts, tables and other materials) supplied by Customer to Swimm, either directly or indirectly (for example, through the Platform or integration with a Third Party Product),and including Customer Data.
“Documentation” means all documentation and other instructional material made available by Swimm regarding the use of the Solution.
“Order Form“ means an ordering document for Services purchased from Swimm that has been executed hereunder by the Parties (or, in the case of an online transaction, which has been electronically accepted by Customer).
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Swimm Property” means (i) the Solution, (ii) the Documentation, (iii) Background IP, and (iv) all content and other materials and software supplied by Swimm in connection with, or used by Swimm in providing, any Services.
“Professional Services” means fee-based setup, implementation, configuration, consulting, training, content development and other services (other than the Solution) that Swimm provides pursuant to an Order Form and which is detailed in an attached statement of work.
“Services” means the Solution and Professional Services, but in all cases excluding Beta Services.
“Solution” means the software services and platform provided by Swimm, including (i) the web and other user interfaces, applications, and software provided to Users, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
“Subscription Term” means the subscription period set forth in the applicable Order Form during which Swimm agrees to provide the Solution to Customer.
“Third Party Products” means certain third party applications, integrations, systems, or services used by Customer, but not supplied by Swimm, that are designed to interoperate with the Solution (for example, OpenAI, through which Customer can generate suggested language and content for use with Customer’s documentation).
“Users” means all users that are authorized to access Customer’s account on the Solution.
2. Services
(a) Solution
(i) Provision of Solution. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Swimm hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Solution in accordance with the terms and conditions of this Agreement and all Order Forms.
(ii) Order Forms. Each Order Form for Solution will describe additional mutually agreed-upon limitations on use of the Platform, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Solution. To the extent an Order Form provides for a Subscription Term that automatically renews or provides Customer with pricing for Subscription Upgrades (as defined below), the Parties may confirm, thereby creating a binding obligation with respect to, such renewal or Subscription Upgrade via email without the need for an additional Order Form executed by the Parties.
(iii) Free Trials. If Customer registers for a free trial for the Solution or a Subscription Upgrade (“Free Trial”), Swimm will make the Solution or Subscription Upgrade available to Customer and its Users on a trial basis free of charge until the earlier of (A) the end of the Free Trial period; (B) the date upon which Customer’s and its Users’ aggregate use of the Free Trial exceeds any usage or quantity limitations imposed thereon; (C) the start date of any Subscription Term purchased by Customer; or (D) termination of the Free Trial by Swimm in its sole discretion. Additional trial terms and conditions may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY CUSTOMER PROPERTY CUSTOMER SUBMITS TO THE SOLUTION, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO THE SOLUTION OR SUBSCRIPTION UPGRADES BY OR FOR CUSTOMER DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES THE SAME SOLUTION AS COVERED BY THE FREE TRIAL OR CUSTOMER EXPORTS SUCH CUSTOMER PROPERTY BEFORE THE END OF THE FREE TRIAL PERIOD.
(iv) Third Party Products. Customer or its Users may choose to use the Solution with certain Third Party Products. Use of Third Party Products is subject to Customer’s agreement with the relevant provider of such Third Party Products and are not governed by, or subject to, the terms and conditions in this Agreement. Swimm will have no liability for Customer’s or its Users’ use of Third Party Products, including their security, functionality, operation, availability, or interoperability or how the Third Party Products or their providers use Customer Property (including Personal Data). By enabling or otherwise using a Third Party Product with the Platform, Customer hereby authorizes Swimm to access and exchange Customer Property with the Third Party Product on Customer’s behalf, and to use any anonymized output generated or returned by such Third Party Product to develop and improve the Services. To the fullest extent permitted by applicable law, Swimm is not responsible for any Third Party Product’s or their provider’s use of any exported information (including Customer Property). In particular, in the event that Customer or its Users choose to utilize elements of the Solution that leverage artificial intelligence and machine learning capabilities, Customer agrees to the terms of the Generative AI Acknowledgement located here.
(b) Professional Services
(i) Scope. Swimm will perform the Professional Services set forth in an Order Form executed by the Parties or signing up online, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable Fees and payment terms. If either Customer or Swimm request a change in the scope of Professional Services, any agreed-upon changes, including changes in Fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”).
(ii) Background IP. Swimm hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive license to access and use the Background IP, if any, that is included in a Professional Services deliverable (“Professional Services Deliverable”) solely as necessary for Customer to use that Professional Services Deliverable; it being understood that the foregoing license does not permit Customer to exploit any Background IP apart from the specific Professional Services Deliverable in which it is included.
(iii) Customer Cooperation. Customer acknowledges that Swimm’s ability to timely deliver the Services is dependent upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to Swimm, on a timely basis, all information, materials, and assistance reasonably necessary for Swimm to perform the Services, including the Customer Property, User lists, and any additional information, material, or assistance identified in an Order Form. Customer will also appoint and actively manage the key roles identified in the statement of work relating to such Order Form. Swimm’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.
(iv) Staffing. Swimm shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Service under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Services under this Agreement. Swimm will be responsible for the acts or omissions of its employees and contractor personnel and any delays caused by the reassignment or replacement thereof.
(v) Expense Reimbursements. Customer will reimburse Swimm for reasonable travel and other expenses incurred in connection with performing the Professional Services, provided that Customer approves such expenses before they are incurred.
3. Fees and Payment Terms
(a) Fees. Customer will pay Swimm all fees specified in or otherwise incurred pursuant to an Order Form (“Fees”) in accordance with this Section 3 and the applicable Order Form. If Customer adds additional Solution or otherwise upgrades its tier of Solution during a Subscription Term (a “Subscription Upgrade”), any incremental Fees associated with such Subscription Upgrade will be prorated over the remaining period of the then-current Subscription Term and charged to Customer and due and payable in accordance with Section 3(b). In addition, unless otherwise set forth in an Order Form, Customer will be deemed to have executed a Subscription Upgrade with Swimm if its usage of the Solution exceeds the previously purchased usage levels. 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 Customer decreases the number of users in its Subscription, Customer will be charged at the new rate beginning with the next billing cycle. In any renewal Subscription Term of such Order Form, the Fees will reflect any such Subscription Upgrades. Fees are quoted and payable in United States dollars. Payment obligations are non-cancellable and Fees paid are non-refundable, except as otherwise expressly set forth in this Agreement.
(b) Invoices and Payment. By providing a credit card or other payment method accepted by Swimm (“Payment Method”) for the Services, Customer agrees that Swimm is authorized to charge to the elected Payment Method all applicable Fees when due, and any other charges Customer may incur in connection with Customer’s use of the Services. For all purchased Services, the Payment Method will be charged on a monthly basis or at the interval indicated in the applicable Order Form. If Swimm does not collect a Payment Method from Customer at the time of purchase, Swimm will invoice Customer for the charges at the email address on file with Swimm. Customer will pay all invoiced amounts within thirty (30) calendar days of the invoice date. Unless otherwise specified in an Order Form, Customer will pay all Fees on an annual, prepaid basis. Overdue invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection.
(c) Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body arising from Swimm’s provision of the Services hereunder (collectively, “Taxes”), except any taxes assessed upon Swimm’s net income. If Swimm is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse Swimm for any amounts paid by Swimm.
(d) Free Trials. If Customer provides billing information when signing up for the Free Trial, Customer will not be charged by Swimm until the Free Trial has expired. Upon the expiration of the Free Trial period, unless Customer previously cancelled its Services by contacting Swimm at info@swimm.io, Swimm reserves the right to automatically charge Customer Fees applicable to the type and quantity of Services provided to Customer during the Free Trial, at Swimm’s then-applicable rates.
4. Proprietary Rights
(a) Customer Property. As between Customer and Swimm, Customer retains all rights, title, and interest in and to the Customer Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Customer Property. Except as expressly set out in this Agreement, no right, title, or license under any Customer Property is granted to Swimm or implied hereby, and for any Customer Property that is licensed to Swimm, no title or ownership rights are transferred to Swimm with such license. Customer is solely responsible for Customer Property, including its content and accuracy, and for backing up Customer Data.
(b) Swimm Property. As between Swimm and Customer, Swimm retains all right, title, and interest in and to the Swimm Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Swimm Property. Except as expressly set out in this Agreement, no right, title, or license under any Swimm Property is granted to Customer or implied hereby, and for any Swimm Property that is licensed to Customer, no title or ownership rights are transferred to Customer with such license.
(c) Licenses to Swimm. Customer hereby grants Swimm a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to access and use the Customer Property made available to Swimm or any of its Affiliates, solely as necessary for Swimm to provide the Services to Customer pursuant to this Agreement. Additionally, Customer grants Swimm a non-exclusive, revocable license to use Customer’s trademarks and logos to identify Customer as a subscriber of the Services; provided that, Customer may revoke such consent at any time in its sole discretion. By submitting to Swimm any unsolicited suggestions, enhancement requests, comments, feedback or other input relating to the Services (“Feedback”), Customer and (as applicable) its Usersgrant to Swimm a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Services in any manner.
5. Data Privacy and Security
The Privacy policy is located here: https://swimm.io/legal/privacy-policy. The privacy policy is incorporated by reference herein and is part of this Agreement.
6. Confidentiality
(a) Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party with Disclosing Party’s consent or to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information. This Section 6 shall supersede any non-disclosure agreement by and between Customer and Swimm entered prior to the Effective Date that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to either Party’s Confidential Information.
(b) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
(c) Return of Confidential Information. At any time upon the request of the Disclosing Party, the Receiving Party will destroy all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
7. Warranties; Disclaimers
(a) Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
(b) Swimm Warranties. Swimm warrants to Customer that the Professional Services shall be performed by Swimm in a professional and workmanlike manner, and the Solution purchased by Customer will, in all material respects, perform in accordance with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Users, or arising from Customer’s negligence or improper use of the Solution, from unauthorized modifications made to the Solution, from use of the Solution in an unsupported operating environment or manner, or that arises from Customer’s or any third party’s software or systems (including Third Party Products).
(c) Customer Warranties. Customer warrants that (i) it will not use the Solution for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party,(ii) it will, and will require that its Users, use the Services in compliance with applicable laws, and (iii) it will grant the rights and licenses needed by Swimm to perform under this Agreement and such grant will not violate or breach any third party terms or conditions.
(d) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SERVICES ARE PROVIDED “AS-IS”; (2) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) SWIMM’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. SWIMM EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF ITS CUSTOMER’S OR USERS’ USE OF THE SERVICES.
(e) Beta Services. Swimm may make Beta Services available to Customer at no charge, and Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to Customer. Beta Services are not considered the “Solution” under this Agreement for purposes of Section 7 (Warranties; Disclaimer) and Sections 8(a) (Indemnification by Swimm); however, all restrictions, Swimm’s reservation of rights and Customer’s obligations concerning the Platform, and use of any Third Party Products shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date otherwise specified in writing by Swimm. Swimm may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided “AS IS” with no express or implied warranty and are outside the scope of Swimm’s indemnification obligations.
8. Indemnification
(a) Indemnification by Swimm. Swimm will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the Solution in accordance with the terms and conditions of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that any portion of the Solution is likely to, in Swimm’s sole opinion, or does become the subject of an Infringement Claim, Swimm may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to customer prepaid unused Fees for the infringing items. Swimm shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use or supply to Swimm of any Customer Property; (2) use of the Solution in combination with any software, hardware, network or system not supplied by Swimm if the alleged infringement relates to such combination; (3) any modification or alteration of the Solution (other than by Swimm); or (4) Customer’s violation of applicable law or third party rights.
(b) Indemnification by Customer. Customer will defend and pay Swimm, its employees, directors and officers (the “Swimm Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Swimm Indemnified Party, arising from any Third Party Claim against a Swimm Indemnified Party alleging that any Customer Property or Customer’s use of the Services beyond the license granted in this Agreement infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party.
(c) Indemnification Conditions. The Parties’ obligations under this Section 8 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 8, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party without the prior express written consent of the indemnified party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 8 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
9. Limitation of Liability
(a) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(b) Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
10. Term and Termination
(a) Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 10(c).
(b) Term of Subscriptions. Customer’s access to the purchased Solution shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. At the expiration of each Subscription Term, the Subscription Term for all purchased Solution will automatically renew for the same period as the renewing Subscription Term, unless either Party elects to not renew by notifying the other Party in writing at least 30 days before such renewal (or at anytime before the renewal date, if the expiring Order Form provides for a month-to-month subscription). Swimm may increase Fees at renewal by providing Customer with prior written notice of such increase. Any introductory or temporary discount offered in a previous Subscription Term is one-time only and does not apply for a renewal Subscription Term. For clarity, pricing for a renewal Subscription Term will be based on Swimm’s pricing in effect at the time of the applicable renewal.
(c) Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than thirty (30) days, continuously.
(d) Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. In the event of termination of this Agreement, upon Customer’s written request made within thirty (30) days after the effective date of termination, Customer shall be entitled to export the Customer Property for up to ninety (90) days from the date such written request is received. After such ninety (90) day period, Swimm shall have no obligation to maintain or provide any Customer Property and may thereafter unless legally prohibited, delete all Customer Property in its possession.
(e) Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 3, 4, 6, 7(d), 8, 9, 10(d), and 11. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.
11. Miscellaneous Provisions
(a) Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and Swimm will be considered an independent contractor when performing any Services hereunder.
(b) Customer Affiliates. An Affiliate of Customer may purchase Services subject to the terms of this Agreement by executing Order Forms with Swimm hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
(c) Acquired and Divested Businesses. If Customer has purchased Solution under an Order Form for an unlimited number of Users within the Customer’s enterprise, a particular business unit or division or otherwise (an “ELA”), any entity or business unit acquired by Customer after the applicable Order Form date (an “Acquired Business”), including its employees, shall not be entitled to any Solution provided under such Order Form. In the event an Acquired Business had previously entered into an agreement with Swimm (a “Prior Agreement”), its new status as a Customer Affiliate shall not create (i) any entitlement on the part of Customer to terminate a Prior Agreement or any Order Forms, (ii) any obligation of Swimm to refund or waive monies paid or payable under either the Prior Agreement or any Order Form, or (iii) any obligation for Swimm to extend or apply any favorable pricing in such Prior Agreements to purchases made under any Order Forms or to subsequent purchases made under the Prior Agreement. If an entity or business unit ceases to be owned by Customer during the Subscription Term of any ELA (a “Divested Entity”), the Divested Entity shall not be entitled to any Services provided under such Order Form after the date on which it ceases to be owned or controlled by Customer without Swimm’s prior written consent, which shall not be unreasonably withheld.
(d) Entire Understanding. This Agreement (including the DPA (if applicable) and all Exhibits and Order Forms, which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.
(e) Modification; Waiver. Except for Swimm’s modification or update of the Documentation or the Solution, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties.
(f) Governing Law; Venue. This Agreement shall be governed by the laws of the State of New York, and the competent state or federal courts residing 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.
(g) Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
(h) Notices. All notices under this Agreement to Customer shall be in writing and shall be delivered to the addresses first set forth in the Order Form(s). Notices to Swimm shall be addressed to: its customer service with a copy to info@swimm.io Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
(i) Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Swimm employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify Swimm if it offers or receives any such improper payment or transfer in connection with this Agreement.
(j) Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in Swimm not being able to provide the Solution for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.
(k) Export Control. The Platform and related technical data and services (collectively, “Controlled Technology”) may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all applicable export and re-export control laws and regulations and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Controlled Technology is generally prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and any other country subject to relevant trade sanctions.
(l) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.