Last updated: 27 September 2022
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU, WHETHER AN INDIVIDUAL OR A BUSINESS ENTITY, AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any User or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Swifteq that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with one or more provisions of this Agreement, You must not accept this Agreement and may not use any of the Services.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of the Customer or its Users within the Services.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
User: means an individual authorized to use a Service through the Account as an user and/or administrator as identified through a unique login.
Agreement: means this Service Agreement together with any and all Supplemental Terms, Additional Features and Order Forms.
Applicable Data Protection Law: means the data protection law(s) applicable to You and Swifteq, including, without limitation: where You (acting as data controller or data processor) are established in an European Economic Area (“EEA”) member state or where Your Users or End-Users access the Services from an European Economic Area (“EEA”) member state: the EU Regulation 2016/679 (and any applicable national laws made under it).
API: means the application programming interfaces developed and enabled by Swifteq that permit the Customers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service.
Beta Services: means a product, service or functionality provided by Swifteq that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
Confidential Information: means all information disclosed by You to Swifteq or by Swifteq to You and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Swifteq’s business, clients, staff, security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Swifteq or its authorized subcontractors as indicated on an Order Form or other written document such as a statement of work “SOW”, as defined below.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Swifteq; provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
End-User: means any person or entity other than the Customer or Users with whom the Customer or its Users interacts, or collects data from, using a Service.
Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Users authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Payment Agent: means Swifteq or any payment agent designated by Swifteq.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Personnel: means employees and/or non-employee service providers and contractors of Swifteq engaged by Swifteq in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable Customer login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”) that are provided under this Agreement. “Services” exclude Third Party Services as that term is defined in this Agreement and Associated Services that are not provided under this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Customer is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Users and End-Users in connection with Your use of such a Service, which may include, without limitation, Personal Data.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
Site: means a website operated by Swifteq, including, without limitation www.swifteq.com and the related domain names, as well as all other websites that Swifteq may operate.
Software: means software provided by Swifteq (either by download or access through the Internet) that provides functionality in connection with the applicable Service.
Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual User.
Supplemental Terms: means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled “Additional Terms and Conditions” which apply and are incorporated into this Agreement for certain Services, features, or functionality; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); or (c) applicable to Consulting Services when purchased by You.
Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.
“We,” “Us,” or “Our”: means Swifteq as defined below.
Swifteq: means Swifteq Ltd., an Irish corporation having a registered business address at 51 Bracken Road, Sandyford, Dublin, D18 CV48, Ireland, or any of its successors or assignees.
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES
2.1 During the Subscription Term and subject to compliance by You, Users and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable deployed Associated Services, for Your internal business purposes. An Affiliate may receive the Services under this Agreement provided that such Affiliate directly enters into a Service Order Form. By entering into a Service Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. The Customer will be responsible for its Affiliates’ compliance with this Agreement. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Users) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).
2.2 You may not use the Services to provide equivalent service on behalf of more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Swifteq from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
2.3 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Swifteq, including the Transport Layer Security (TLS) protocol or other protocols accepted by Swifteq, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, the Users or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including the Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Swifteq. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.4 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Users and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Users or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Swifteq or Swifteq Affiliates; (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (k) use the Services to store or transmit any protected health information, unless expressly agreed to otherwise in writing by Swifteq; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
2.5 As between You and Swifteq, You are responsible for compliance with the provisions of this Agreement by Users and End-Users and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit the Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Users or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the volumes of support tickets available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified volume of Support Tickets permitted under Your subscription to the applicable Service. You agree and acknowledge that each User will be identified by a unique username and password (“Login”) and that a User Login may only be used by one (1) individual. You will not share the User Login among multiple individuals. You and Your Users are responsible for maintaining the confidentiality of all Login information for Your Account. Swifteq reserves the right to periodically verify that Your use of the Services complies with the Agreement and the Service Plan restrictions on Our Site. Should Swifteq discover that Your use of the Services is not in compliance with this Agreement or the Service Plan restrictions on Our Site, Swifteq reserves the right to charge You, and You hereby agree to pay for the said usage in addition to other remedies available to Us.
2.6 In addition to Our rights as set forth in Sections 2 and 8.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of the Services if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Users or End-Users.
2.7 You acknowledge that Swifteq may modify the features and functionality of the Services during the Subscription Term.
2.8 You may not access the Services if You are a direct competitor of Swifteq, except with Swifteq’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
2.9 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service(s) purchased by You for such Service(s); or (c) termination of the trial by Us in Our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST AFTER THE END OF THE FREE TRIAL, UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
2.10 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services at Your 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 You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any Third Party Services shall apply equally to Your 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 that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time at Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. CONFIDENTIALITY; SECURITY AND PRIVACY
3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties and such agreement shall have no further force or effect.
3.2 Swifteq will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Service Data, as described in the Agreement and the Security Policy. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Service Data by the Personnel except (a) as necessary to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. Swifteq’s compliance with the provisions of Sections 3.2 through 3.5 and the Security Measures set forth in Exhibit B, Section 2 (“How We Protect Service Data”) shall be deemed compliance with the Swifteq’s Group’s obligations to protect the Service Data as set forth in the Agreement.
3.3 To the extent Service Data constitutes Personal Data, You and Swifteq hereby agree that You shall be deemed to be the data controller and Swifteq shall be deemed to be the data processor as those terms are understood under the Applicable Data Protection Law. The Processing of the Personal Data by Swifteq shall be governed by a data processing agreement available at https://www.swifteq.com/dpa that is incorporated by reference hereto (“DPA”). The Parties further agree to individually comply with all applicable data protection laws. Under no circumstances will Swifteq be deemed a data controller with respect to the Service Data under the Applicable Data Protection Law or any relevant law or regulation of any Member State as defined in Applicable Data Protection Law.
3.4 You agree that Swifteq and the third-party service providers that are utilized by Swifteq to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose the Service Data to the extent necessary to provide the Services to You, including, without limitation, in response to Your support requests. Any third-party service providers utilized by Swifteq will only be given access to Your Account and the Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to the Personal Data as set forth in the DPA.
3.5 Whenever You, Your Users or End-Users interact with the Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, “cookie” information, the type of browser and/or device being used to access the Services. When We collect this information, We only use this data in aggregate form to improve the Services, and not in a manner that would identify Your Users or End-Users personally.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”).
4.2 The rights granted to You, the Users and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith.
4.3 Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, the Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Swifteq and belong exclusively to Swifteq. Swifteq shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, the Users, End-Users, or other third parties acting on Your behalf.
4.4 Swifteq other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of Swifteq (collectively, “Marks”), and You may only use applicable Marks in a manner permitted by Our Trademark Usage Guidelines to identify You as a Customer, provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
5. BILLING, PLAN MODIFICATIONS AND PAYMENTS
5.1 Unless otherwise indicated on the Order Form, in the Supplemental Terms entitled “Service Specific Terms”, or Additional Terms (as defined in Section 12.2) and subject to Section 5.2, all charges associated with Your access to and use of the Services (“Subscription Charges”) are due in full upon commencement of Your Subscription Term, or, with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Services by You, the Users and End-Users.
5.2 If You choose to upgrade Your Service Plan or increase the number of Users or volume of tickets authorized to access and use the Services during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then-current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
5.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Services as available to You under Your Account, and Swifteq does not accept any liability for such loss.
5.4 Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying the Taxes. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
5.5 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services and for periodic Subscription Charges applicable to the Deployed Associated Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
5.6 Payments made by credit card, debit card or certain other payment instruments for the Services are billed and processed by the Payment Agent. To the extent the Payment Agent is not Swifteq, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Swifteq and shall not be construed to be providing the applicable Services.
5.7 Any Customer that mandates Swifteq to use a vendor payment portal or compliance portal which charges Swifteq a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, shall be invoiced by Swifteq for the cost of this fee.
6. PROMOTIONAL CREDITS POLICY
6.1 We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals for Swifteq services such as training. Swifteq reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Services. Credits may only be applied to Subscription Charges due for the Services specifically identified by Swifteq when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
7. CANCELLATION AND TERMINATION
7.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then-current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Services is so terminated, Your subscription to the Services (including any and all Deployed Associated Services) will renew for a Subscription Term equivalent in length to the then-expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to the Services for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Deployed Associated Services to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.
7.2 No refunds or credits for the Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then-effective Subscription Term.
7.3 Except for Your termination under Section 7.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then-effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2, 7.4 and 7.5, in addition to other amounts You may owe Swifteq, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Swifteq, provided that You provide advance notice of such breach to Swifteq and afford Swifteq not less than thirty (30) days to reasonably cure such breach as provided for in Section 7.5 herein.
7.4 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Users’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, the Users or End-Users have violated this Agreement. This includes the removal or disablement of the Service Data. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, the Users, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, the Users or End-Users may be referred to law enforcement authorities at Our sole discretion.
7.5 A Party may terminate this Agreement for cause (a) upon thirty (30) calendar days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
7.6 Upon request by You made within thirty (30) calendar days after the effective date of termination or expiration of this Agreement, We will make the Service Data available to You for export or download as provided in the Documentation. After such a 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will have the right to delete or destroy all copies of the Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
8.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 We warrant that, during an applicable Subscription Term, (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 7.5 herein.
8.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. LIMITATION OF LIABILITY
9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, USERS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF SWIFTEQ), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SWIFTEQ’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT.
9.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, SWIFTEQ’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.4 Any claims or damages that You may have against Swifteq shall only be enforceable against Swifteq and not any other entity or its officers, directors, representatives or agents.
10.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Swifteq for such defense, provided that (a) You promptly notify Swifteq of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Swifteq in connection therewith. If use of a Service by You, the Users or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Swifteq, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Swifteq for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 10.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Swifteq; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing.
The provisions of this Section 10.1 state the sole, exclusive and entire liability of Swifteq to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, the Users or End-Users.
10.2 You will indemnify and hold Swifteq harmless against any claim brought by a third party against Swifteq arising from or related to use of a Service by You, the Users or End-Users in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a) We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
11. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
11.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to a third party in connection with any merger or change of control of Swifteq or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfil its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
11.2 This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Swifteq with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.
Notwithstanding the foregoing, You may be presented with additional features, functionality, or services as detailed in a Supplement hereto or that We offer as part of or distinct from the Services (“Additional Features”). In those instances, We will notify You of such Additional Features prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Features. All such Additional Features will be considered incorporated into this Agreement when You or any User authorized as an administrator in Your Account activate the feature, functionality, or service.
11.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) calendar days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Swifteq as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Services and other Software or components of the Services that We may provide or make available to You, the Users or End-Users may be subject to export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, the Software and such other components by You, the Users and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under the applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction.
14. RELATIONSHIP OF THE PARTIES
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
15.1 All notices to be provided by Swifteq to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or postal service to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner.
15.2 You must give notice to Swifteq in writing by email to email@example.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
16. GOVERNING LAW
16.1 This Agreement shall be governed by the laws of Ireland, without reference to conflict of laws principles.
16.2 Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Ireland. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, the Users or End Users.
You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or Users in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Swifteq at firstname.lastname@example.org.
Sections 1, 3.1, 4 and 9-20 shall survive any termination of our agreement with respect to use of the Services by You, the Users or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
ADDITIONAL TERMS AND CONDITIONS
SECTION 1: HOW WE PROTECT SERVICE DATA
Swifteq is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary. The Security Measures utilised by us are outlined in our Security Policy available at https://www.swifteq.com/security-policy.
SECTION 2: CONSULTING SERVICES
If the Customer has engaged Swifteq for the provision of Consulting Services as indicated on an Order Form, or other written document such as a Statement of Work, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, the Customer agrees that any Consulting Services must be scheduled for completion by the Customer within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, the Customer and Swifteq, intending to be legally bound, agree to the terms set forth below.
1. Scope. All Consulting Services pursuant to the Agreement provided by Swifteq to the Customer will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of the Consulting Services to be provided.
2. Retention. The Customer hereby retains Swifteq to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Swifteq shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW with respect to such Consulting Services. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
3. Performance of Consulting Services.
3.1 Each SOW will include reasonable details about the Consulting Services, including, at a minimum, the Consulting Fees charged and the Consulting Services provided. Swifteq and the Customer agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Customer’s Representative” and “Swifteq’s Representative,” respectively). Any Subcontractor (defined below) designated by Swifteq to perform any portion of the Consulting Services will designate a representative to interface with the Customer and Swifteq on all matters relating to the Subcontractor’s performance of the Consulting Services (“Subcontractor’s Representative”).
3.3 Swifteq will perform the Consulting Services through qualified employees and/or non-employee contractors of Swifteq (“Subcontractors” and together with Swifteq’s employees for the purposes of these Supplemental Terms, “Consulting Services Personnel”). The Customer agrees to provide, at no cost to Swifteq, timely and adequate assistance and other resources reasonably requested by Swifteq to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Swifteq, nor its Subcontractors will be liable for any deficiency in performance of the Consulting Services to the extent resulting from any acts or omissions of the Customer, including but not limited to, the Customer’s failure to provide Assistance as required hereunder.
3.4 In performing the Consulting Services, Swifteq will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. The Customer may object to Swifteq’s election of Subcontractors by specifying its objection to Swifteq, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Swifteq may replace the Consulting Services Personnel in its normal course of business, provided that Swifteq will be responsible for the performance of the Consulting Services by all Consulting Services Personnel.
3.5 Swifteq will control the method and manner of performing all work necessary for completion of the Consulting Services, including but not limited to the supervision and control of any Personnel performing the Consulting Services. Swifteq will maintain such a number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Swifteq’s obligations under the Agreement in accordance with its terms.
3.6 With Customer’s approval, Swifteq may enter (“assume into”) the Customer’s Account as needed to provide the Consulting Services.
3.7 In the event that the Customer seeks to change the scope of the Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), the Customer shall discuss such proposed changes with Swifteq. If Swifteq elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Swifteq shall be entitled to an adjustment in the Consulting Fees pursuant to the changes reflected in the Change Order. Swifteq shall not be obligated to perform any differing or additional Consulting Services, unless the Parties have mutually agreed upon a written Change Order.
3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Swifteq shall provide the Customer with written notice (“Completion Notice”). Thereafter, the Customer shall have five (5) days after the date of the Completion Notice to provide Swifteq with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete and the deliverables accepted absent Customer’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.
4. Consulting Fees; Payment Terms.
4.1 The Customer will pay Swifteq the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Consulting Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Swifteq shall invoice the Customer for the Consulting Services provided on a monthly basis. All Consulting Fees are due and payable upon the date of the invoice, except for the Consulting Fees that the Customer disputes in good faith for reasons articulated in writing by the Customer within thirty (30) days after receiving such invoice.
4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of the Consulting Services (“T&M Estimate”). Swifteq will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Swifteq will make a reasonable effort to notify the Customer as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, the Customer will assess, and accept or reject the amended T&M Estimate. Unless the Customer rejects such amended T&M Estimate within five (5) calendar days of delivery, such amended T&M Estimate shall be deemed accepted by the Customer and the Customer shall be liable for all Consulting Fees associated with the Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Customer shall be deemed a Change Order.
4.3 The performance of the Consulting Services may be subject to a retainer to be paid in advance by the Customer upon execution and delivery of the SOW. Such retainer will be applied against the Consulting Fees which become payable by the Customer. Swifteq may refuse to perform the Consulting Services unless and until such retainer is paid to Swifteq.
4.4 In addition to any and all Consulting Fees, the Customer will reimburse Swifteq for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change Consulting Fees to travel and accommodations resulting from Customer’s request incurred by Swifteq in connection with providing the Consulting Services (“Expenses”). Swifteq will provide reasonable documentation for all Expenses as requested by the Customer. Customer shall reimburse Swifteq for Expenses within thirty (30) calendar days of submission of the Expenses to Customer by Swifteq.
4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) calendar days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
4.6 Cancellation/Changes: Any cancellations/changes less than five (5) calendar days prior to the agreed Consulting Services commencement date are subject to forfeiture of the Consulting Fees paid and reserved date(s).
5. Relationship of the Parties. Swifteq is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing the Consulting Services. Swifteq at no time will hold itself out as an agent, subsidiary or affiliate of the Customer for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by the Customer to Swifteq hereunder shall not be considered salary for pension or wage tax purposes and neither Swifteq nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of the Customer, unless otherwise required by law. The Customer shall not be responsible for deducting or withholding from the Consulting Fees or Expenses paid for the Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
6.1 Swifteq hereby represents and warrants that:
i. the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Swifteq and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Customer’s sole and exclusive remedy for any breach of this warranty will be, at Swifteq’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Swifteq by the Customer for the nonconforming portion of the Consulting Services; and
ii. it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
6.2 The Parties hereby agree that:
CUSTOM APPLICATIONS THAT RESIDE WITHIN THE SWIFTEQ SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO CUSTOMER “AS IS” AND SWIFTEQ MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO CUSTOMER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. SWIFTEQ SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT CUSTOMER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY SWIFTEQ. SWIFTEQ DOES NOT WARRANT THAT CUSTOMER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. S WIFTEQ EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, S WIFTEQ EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY SWIFTEQ OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO CUSTOMER AND ANY THIRD PARTY’S USE OF THE SERVICES.
7. Rights to Deliverables; Ownership.
7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Customer’s subscription to a Service and integration of the Customer data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, the Customer hereby assigns to Swifteq all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Swifteq a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Swifteq shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Swifteq receives from Customer.
7.2 Without limiting the foregoing, Swifteq and its licensors reserve and retain ownership of all Pre-existing Technology, Developed Technology and Generic Components (each as defined below), and Swifteq hereby grants to the Customer a non-exclusive, fully-paid, limited license to use Pre-existing Technology, Developed Technology and Generic Components solely in connection with the Customer’s use of the Service(s). “Pre-existing Technology” means all of Swifteq’s inventions (including those of Swifteq’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Swifteq and its Affiliates or their Consulting Services Personnel in connection with providing the Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Swifteq’s Pre-existing Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Swifteq and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Swifteq’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Customer’s Confidential Information.
SECTION 3: Swifteq Data Deletion Policy
Swifteq’s Data Deletion Policy (“Data Deletion Policy”) describes how our Customers’ Service Data is deleted in connection with the cancellation, termination or migration of an Account within the Swifteq Services detailed herein. This Policy does not apply to (a) data that resides in any Swifteq product or services not detailed in this Policy; (b) data that resides in Third Party Services managed and hosted by third parties and the Service Data that is or may be shared with such Third Party Services (as defined in our Master Services Agreement); or (c) data that resides in a Swifteq product or service that is in a Beta, Testing or Early Access Program (except as noted within this Data Deletion Policy).
Account Cancellation or Termination
Ninety (90) calendar days after your Account for one of the Services listed below is cancelled or terminated; or, one hundred and eighty calendar days (180) days after your trial has ended for one of the Services without you having purchased a subscription to that Service, we will delete your Service Data for the cancelled Service. Once started, this deletion can take up to one week (7 days).