Terms and Conditions
Effective date: October 1, 2020
THESE TERMS AND CONDITIONS ARE A BINDING CONTRACT BETWEEN YOU (“CUSTOMER”) AND SWIFTLANE, INC. (“SWIFTLANE” OR “COMPANY”). YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER. THIS “AGREEMENT” INCLUDES AND INCORPORATES THESE TERMS AND CONDITIONS AND ANY ORDER FORMS EXECUTED BY THE PARTIES IN WRITING AND REFERENCING THESE TERMS AND CONDITIONS (EACH, AN “ORDER FORM”). BY ACCEPTING THIS AGREEMENT (E.G., BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM, OR BY USING ANY OF COMPANY’S PRODUCTS OR SERVICES (INCLUDING ANY SERVICES SET FORTH IN AN ORDER FORM), CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. CAPITALIZED TERMS USED HEREIN THAT ARE NOT SEPARATELY DEFINED WILL HAVE THE MEANINGS ASCRIBED TO THEM IN THE ORDER FORM.
1. SERVICES AND SUPPORT
1.1 Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Company will use commercially reasonable efforts to provide Customer with access to the hardware, equipment, software and/or services specified in each Order Form (collectively, the “Service” or “Services”) during the applicable Service Term for the internal business purpose of Customer, only as provided herein and only in accordance with Company’s applicable official user documentation.
1.2 Company will use commercially reasonable efforts to (a) ensure that any hardware or equipment identified on the Order Form (the “Hardware”) is provided to Customer in good condition and working order, and (b) provide a replacement for any such Hardware that is defective at the time of delivery, provided that Customer notifies Company of such defect within 10 days of receipt of the Hardware. Customer will not sell, pledge or otherwise dispose of or encumber, or allow any lien to be attached to, the Hardware or remove the Hardware from the premises where originally installed. Customer agrees and acknowledges that title to the Hardware will not be affected by the merger or incorporation of the Hardware into the premises, equipment or hardware of another; nor will the Hardware become a fixture to the premises, equipment or hardware of another, nor will it lose its identity by reason of affixation or attachment to any real property. Customer will use its best efforts to treat the Hardware such that it will not be deemed a fixture under real property laws. Customer will not remove or obfuscate from the Hardware any legend or label attached to it, stating it to be the property of Company, and Customer will, upon the request of Company, execute any instruments (which may be publicly filed) evidencing Company’s ownership of such Hardware, and to identify the Hardware as made available to Customer for its use only. At the end of the Service Term (or at any time that Company provides Customer with upgraded Hardware during the Service Term), Customer will return any Hardware then in its possession (including any software loaded on such Hardware) to Company in good condition, normal wear and tear excepted. Company reserves the right to enter immediately upon Customer’s property and take possession of the Hardware (or Customer shall immediately return such Hardware to Company, in good condition, reasonable wear and tear excepted, upon Company’s request), in the event of any actual or threatened violation of this Section 1.2 or if Customer becomes insolvent, or files (or has filed against it) any bankruptcy or similar proceeding, or to suspend Customer’s access to the software if Customer fails to make any payment under this Agreement when due or violates any license or use restrictions set forth herein.
1.3 Upon payment of any applicable fees set forth in each Order Form, Company agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Company provides any additional Implementation Services beyond those agreed in an Order Form, Customer will pay Company at its then-current hourly rates for consultation. Notwithstanding anything to the contrary, Company is not required to provide Implementation Assistance in any areas that are deemed by Company to be hazardous or have exposure to hazardous materials. In such event, Company shall have the right to cease work in such environment or charge additional expenses incurred by Company or its approved installers as a result of the presence of hazardous materials. Company is not liable in the event of a failure of the Services arising from or related to Hardware installation and issues with Customer’s premises. Risk of theft, damage or other loss of Hardware or any part of the same, passes to Customer upon installation of the Hardware (if Company or a Company approved installer handles the installation), or upon shipment (if Customer’s preferred installer handles the installation).
1.4 Company reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Company.
1.5 Subject to the terms hereof, Company will provide reasonable support by email to Customer for the Services from Monday through Friday during Company’s normal business hours.
1.6 From time to time, Company may provide upgrades, patches, enhancements or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Company shall have no obligations under this Agreement or otherwise to provide any such Updates. Customer understands that Company may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Company will use commercially reasonable efforts to give Customer prior written notice of any major changes.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any users or third party to, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) interfere or attempt to interfere with the proper working of the Service or Software or any activities conducted on the Service; (vii) bypass any measures Company may use to prevent or restrict access to the Service or Software (or other accounts, computer systems or networks connected to the Service); (viii) use the Service or Software to build an application or product that is competitive with any Company product or service, or (ix) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy (including, without limitation, in Europe), intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).
2.2 Customer will cooperate with Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Company may reasonably request. Customer will also cooperate with Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Company.
2.5 Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from (i) an alleged violation of this Agreement, (ii) any bodily injury or death caused by or arising from Customer’s negligence or any hazardous conditions on Customer’s premises, or (iii) otherwise from Customer’s use of Services. Although Company has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Company may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.6 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.8 Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Company is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Company does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
3.3 Customer acknowledges that Company does not wish to receive any Proprietary Information from Customer that is not necessary for Company to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Company may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.4 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA
4.1 As between the parties, Company (and its licensors, where applicable) will retain all right, title and interest in and to the Services, and all software, products, works and other intellectual property and moral rights related thereto or created, used or provided by Company for the purposes of this Agreement, including any copies and derivative works of the foregoing. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software, or any intellectual property rights. Customer may from time to time provide suggestions, comments or other feedback to Company with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligations for Company notwithstanding anything else. Customer shall, and hereby does, grant to Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicenseable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Company’s rights to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market or distribute.
4.3 Company shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created or provided by Company, (ii) resulting in whole or in part in accordance to Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Company from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Company’s indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
5.1 Customer will pay Company the applicable fees as set forth on the Order Form (the “Fees”). If Customer use of the Services exceeds the Service Capacity set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay Company for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Terms. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.
5.2 Unpaid Fees 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, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Company’s net income) unless Customer has provided Company with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Company on account thereof.
5.3 Notwithstanding the foregoing, if Customer receives access to the Services through an authorized reseller of Company (“Reseller”), Customer will pay the fees as set forth in its agreement or order form with Reseller for the Services.
6.1 Subject to earlier termination as provided below, this Agreement shall commence upon the effective date set forth in the first Order Form and shall last until the expiration of the Service Term of the last to expire Order Form. If Customer receives access to the Services through a Reseller, the term of this Agreement shall be coterminus with the term of Customer’s agreement with Reseller for the Services. Notwithstanding anything else, Customer acknowledges and agrees that if Reseller is in breach of its obligations to Company (including a failure to pay Customer the fees owed), then Company may at its discretion terminate this Agreement and cease providing the Services to Customer without incurring any liability to either Customer or Reseller.
6.2 In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such notice period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnities and limitations of liability.
7. CLIENT SOFTWARE SECURITY
Company represents and warrants that it will not knowingly include, in any Company software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Company fails to comply with the warranty in this Section, Customer may promptly notify Company in writing of any such noncompliance. Company will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND COMPANY PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. COMPANY (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OR DEALING.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO COMPANY HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Company are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Company will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Company. Company is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.