Software Subscription Agreement
In consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to the foregoing and as follows:
When used in this Agreement with the initial letters capitalized and not otherwise defined in this Agreement shall have the following meanings:
1.1 “Account Contact” means a point of contact designated by you for SWETI to interact with in supporting the Software Solution.
1.2 “Additional Feature(s“ means additional features or functionality (including, but not limited to, additional plugins, expanded API features not originally included in subscription, custom design work, Third Party Plugins and add on’s, beta services, custom programming services, or additional partner integrations) that are available or enabled through the Service, but do not form part of the Service. Additional Features are purchased or enabled separately and distinctly from this Subscription.
1.3 “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.
1.4 “Agent” means an individual (including those of Subscribers Affiliates) authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
1.5 “Agreement” means this Master Software Subscription Agreement together with any and all Supplemental Terms, Order Forms, Statements of Work (“SOW”), and Data Processing Agreement (“DPA”) (each, where applicable) along with the SWETI privacy agreement.
1.6 “API” means the application programming interfaces developed and enabled by SWETI that permits interaction of data between Third Party Applications, or Plugins, and ABC Financial software DataTrak. The custom API developed by SWETI resides in a custom plugin created specifically to function on a WordPress site as a WordPress Plugin.
1.7 “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 the avoidance of doubt, Additional Features that are expressly stated to be governed by separate Supplemental Terms shall not be deemed an Associated Service.
1.8 “Beta Services” means a product, service or functionality provided by SWETI 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.
1.9 “Confidential Information” means all information disclosed by You to SWETI llc or by SWETI llc to You which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, 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 SWET’s 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.
1.10 “Consulting Services” means consulting and professional services (including any training, success or implementation services) provided by SWETI or it’s authorized subcontractors as indicated on an Order Form or other written document such as a Statement of Work.
1.11 “Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Subscription Plans, as applicable, provided or made available by SWETI to You in the applicable knowledge base(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
1.12 “End-User” means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact with while using a Service.
1.13 “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 instances, locations, and authorized websites that contain Our products.
1.14 “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.
1.15 “Personnel” means employees and/or non-employee service providers and contractors of SWETI engaged by SWETI in connection with performance hereunder.
1.16 “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.
1.17 “Service(s)” means the products and services that are ordered by Subscriber online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by SWETI, the applicable Software, updates, API, Documentation, and all applicable Associated Services that you, the Subscriber, have purchased or deployed or to which You have subscribed (“Deployed Associated Services”) that are provided under this Agreement. “Services” exclude (i) Third Party Services as that term is defined in this Agreement; and (ii) any Additional Features or Associated Services that are not provided under this Agreement or Your Subscription. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber 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.
1.18 “Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Agreement applicable to the Service) for the Services to which You subscribe.
1.19 “Site”, “Wordpress Site”, “Website” means a website owned by You that may contain custom products created by SWETI. Your Site will use WordPress to utilize SWETI’s WordPress Plugin as well as other Third-Party Service. Plugins are independent software programs that are uploaded to your hosted WordPress environment.
1.20 “Software” means software provided by SWETI (either by download or access through the Internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
1.21 “Subscription Term” means the period during which you, the Subscriber, has agreed to subscribe to SWETI Software under this Master Services Description, starting from the “Effective Date” of the subscription.
1.22 “Supplemental Terms” means the additional terms and conditions that are (a) contained in Exhibit B to this Agreement entitled, “Supplemental Terms and Conditions”; (b) included or incorporated on an Order Form via hyperlink or other reference (e.g. when a Deployed Associated Service is purchased); (c) applicable to Consulting Services when purchased by Subscriber; applicable to Additional Features when activated by Subscriber.
1.23 “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 Site by You the Subscriber, or your agents at Your direction.
1.24 “We,” “Us” or “Our” means SWETI llc the company providing the Software Solution.
1.25 “You”, “Your” means the Subscriber who has agreed to and signed this agreement.
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SOFTWARE BY SUBSCRIBER
2.1 During the Subscription Term and subject to compliance by You, the Subscriber or Agents and End-Users with this Agreement 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 business purposes. An Affiliate may purchase a subscription to the Services under this Agreement provided that You or such Affiliate executes an Order Form for such Services. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber also agrees that it will be responsible for its Affiliates’ compliance with this Agreement.
2.2 SWETI 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 with 98.5% uptime, 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 contact and Agents) (“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”).
2.3 SWETI will notify You of applicable Supplemental Terms prior to the activation of any Additional Features.
2.4 Our services operate on the WordPress platform. Subscriber is responsible for maintaining a functioning Site with a compatible web hosting service that meets the minimum requirements as outlined in your Agreement. SWETI are not responsible for the loss of service due to changes or failures at the host level, nor are we responsible for Third Party software or API issues. This includes the EventOn calendar plugin and ABC DataTrak API. If those Third-Party Services or Your WordPress hosting are canceled, disrupted, or in any way unavailable You as the Subscriber are still responsible for the term of your Subscription. Reasonable commercial practices will be applied in the event that Our services no longer function due to changes from Third Party Services that are not within in Your control.
2.5 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 Agents 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 Agents 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 SWETI (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, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by SWETI; (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 online web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
2.6 As between Subscriber and SWETI, Subscriber is responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Subscription. Without limiting the foregoing, Subscriber is solely responsible for ensuring that use of the Services to store and transmit 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 Agents 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 number of individual Agents 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 locations in you Subscription Agreement. Should SWETI discover that Subscriber use of a SWETI Service is not in compliance with this Agreement or the Service Plan restrictions on Our Site, SWETI reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.
2.7 In addition to Our rights as set forth in Sections 2 and 8.4, SWETI reserves the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service/API if We suspect or detect unauthorized use of Our Service by You, Agents or End-Users.
2.8 Subscriber acknowledges that SWETI may modify the features and functionality of the Services during the Subscription Term to ensure the proper ongoing function of the Software and to add additional features.
2.9 You may not access the Services if You are a direct competitor of the SWETI, except with SWETI’s prior written consent. You may not access the Services for competitive purposes.
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 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, SWETI may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, SWETI’s reservation of rights and Your obligations concerning the Service 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 in 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 and who are bound by terms of confidentiality intended to prevent the misuse of 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 SWETI will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) 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. SWETI’s compliance with the provisions of Sections 3.2 through 3.4 shall be deemed compliance with the SWETI’s obligations to protect Service Data as set forth in the Agreement.
3.3 You agree that the SWETI and third-party service providers that are utilized by the SWETI 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 Service Data to the extent necessary to provide or improve the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by the SWETI will only be given access to Your Account and 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.
3.4 SWETI will never sell, rent, or lease Your Service Data to any third party. We do not share Your Service Data with third parties, except as permitted by Section 3.5 of this Agreement and in order to provide and support the Services. We may, however, share aggregated and anonymized information regarding Your use of the Services with third parties as described in this Section. To be clear, we would never disclose aggregated and/or anonymized information to a third party in a manner that would identify You as the source of the information or Your Agents or End-Users personally, as an individual.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 SWETI Intellectual Property. SWETI retains title to the Software, and all copyright and other intellectual property and proprietary rights to all portions of the Software, and all modifications, alterations, derivative works, and enhancements thereto, and all copies thereof. Subscriber agrees at all times to keep the Software free of all security interests, liens, encumbrances, mortgages, and claims whatsoever, and Subscriber agrees that neither it nor anyone at its direction shall file a financing statement, mortgage, notice of lien, deed of trust, security agreement or any other agreement or instrument creating or giving notice of an encumbrance or charge against the Software. Except as specified herein, Subscriber does not acquire any rights, express or implied, in the Software, and has no right to commercialize or transfer the Software, in whole or in part, or any modifications, alterations, derivative works or enhancements thereto. No license, right, or interest in any SWETI trademark, trade name or service mark is granted pursuant to this Agreement. Subject only to the following, title to all Work Product will at all times remain the sole and exclusive property of SWETI or its licensors; provided that SWETI shall not obtain any ownership rights in any works, Confidential Information, Subscriber Data (as defined below) and other materials provided by, or on behalf of, Subscriber. Upon request, Subscriber agrees to execute such documents as may be reasonably requested by Subscriber to secure SWETI’s rights in and to the foregoing. SWETI hereby grants Subscriber a perpetual, worldwide, royalty-free (subject only to the fees provided for in a Statement of Work to the Professional Services Terms), irrevocable (except as otherwise provided herein), non-exclusive right and license to copy, use, modify and sub-license all Deliverable, to the same extent as if Subscriber was the sole owner thereof, without an obligation to account to SWETI.
4.2 Subscriber Data. Subscriber shall own any data or information that it provides with respect to this Subscription Agreement (“Subscriber Data”). Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership or right to use all Subscriber Data, and SWETI shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Subscriber Data for any reason.
5. THIRD PARTY SERVICES
5.1 If You decide to enable, access or use Third Party Services on your own site in conjunction with or separate from our services, be advised that Your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Third Party Services. We cannot guarantee that adding Third Party Services to a Site using Our Services will not have a negative effect on those Services. SWETI suggests consulting Our support team anytime a new Third-Party Service or Plugin is added to the Site to make sure Site is properly protected, backed up, and compatible.
6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 Unless otherwise indicated on an Order Form or SOW referencing this Agreement or in the Supplemental Terms, and subject to Section 6.2, all charges associated with Your access to and use of a Service (“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 such Service by You, Agents and End-Users.
6.2 If You choose to upgrade Your Service Plan or increase the number of Location Licenses authorized to access and use a Service 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.
6.3 No refunds or credits for Pre-paid or otherwise Paid 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 Service as available to You under Your Account, and SWETI does not accept any liability for such loss.
6.4 Unless otherwise stated, SWETI’s subscription fee do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against SWETI measured by its net income. 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.
6.5 If You pay by credit card or certain other payment instruments, SWETI will provide a form for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent. 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 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 SWETI and 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.
6.6 Payments made by credit card, debit card or certain other payment instruments for the SWETI Service are billed and processed by SWETI’s Payment Agent. To the extent the Payment Agent is not SWETI, the Payment Agent is acting solely as a billing and processing agent for and on behalf of SWETI and shall not be construed to be providing the applicable Service.
6.7 If You mandate SWETI use a vendor payment portal or compliance portal which charges SWETI a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, Subscriber shall be invoiced by SWETI for, and You are obligated to pay, the cost of this fee.
7. CANCELLATION AND TERMINATION
7.1 Either Party may elect to terminate Your Subscription at 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 a Service are so terminated, Your subscription to a Service (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 a Service 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 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 8.5, 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 8.4 and 8.5, in addition to other amounts You may owe SWETI, Subscriber 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 SWETI, provided that You provide advance notice of such breach to SWETI and afford SWETI no less than thirty (30) days to reasonably cure such breach as provided for in Section 8.5 herein.
7.4 We reserve the right to restrict functionality, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and quarantine any Service Data if We believe that You, Agents or End-Users have violated this Agreement. This right includes the removal or disablement of Service Data and API access in accordance with a Copyright Infringement Notice and Takedown Policy. Unless legally prohibited from doing so, SWETI will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. SWETI shall not be liable to You, Agents, 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, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
7.5 Either Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such notice; 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, SWETI 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, Subscriber 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) days after the effective date of termination or expiration of this Agreement, SWETI will make Third Party Service access available to You for Third Party Services You own separate from Our Subscription. After such 30-day period, SWETI will have no obligation to maintain or provide any Service access, and, as provided in the Documentation, will have the right to delete or destroy all copies of 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 the protection of the security, confidentiality, and integrity of 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 PLUGINS AND THEIR 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, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE 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 SWETI), 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 AFFILIATE 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, SWETI’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, 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. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
9.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, SWETI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.4 Any claims or damages that You may have against SWETI shall only be enforceable against SWETI and not any other entity or its officers, directors, representatives or agents.
10. DEFENSE AND INDEMNIFICATION
10.1 Limited Covenant to Defend. SWETI will defend any third-party claim brought against Subscriber in the United States to the extent that the claim, if true, would constitute an infringement or misappropriation by the Software of any registered, valid and subsisting patent or copyright recognized under the laws of the United States and of which SWETI had actual knowledge; provided, however, that: (a) Subscriber immediately advises SWETI of the claim upon learning of the assertion of the claim; and (b) SWETI is given the sole right to control the defense and/or settlement of the claim, in litigation or otherwise; and (c) Subscriber provides to SWETI, at SWETI’s cost, all reasonable assistance.
10.2 Injunctions Obtained by Third Parties. If a third-party infringement claim, of which SWETI is notified in accordance with Section 8.1 (or of which SWETI is otherwise aware or believe is likely) results, or in SWETI’s opinion is likely to result, in an injunction prohibiting Subscriber from continued use of the Software that is the subject matter of the claim, then SWETI shall, in its sole discretion and at its expense: (a) procure for Subscriber the right to continue to use the Software that is the subject matter of the claim; (b) replace or modify the Software that is the subject matter of the claim to make it non-infringing, but, where reasonably possible, preserving the functionality of such Software; or (c) terminate the license for the infringing Software, and return a prorated portion of the Subscription Fees paid by Subscriber for the infringing Software, prorated over a three (3) year term from the effective date of the applicable subscription term as set forth in the Order.
10.3 Exceptions to Duties to Defend and Indemnify. Notwithstanding any other provisions hereof, SWETI shall have no obligation to indemnify or defend Subscriber for any third-party claim pursuant to this Section 10, nor be required to pay losses, damages or expenses under this Section 8, if Subscriber agrees to settle any such claim without the prior written consent of SWETI, or if the claim arises out of, in whole or in part: (a) a modification of the Software by anyone other than SWETI; (b) use of the Software other than in accordance with the Documentation or the terms of this Agreement; (c) use of a release of the Software without having implemented Updates, the use of which would have cured or prevented the alleged infringement; (d) use of the Software in combination with any third-party hardware, software, database or materials where, absent such combination, the Software would not be infringing; or (e) Subscriber’s negligence or willful misconduct.
10.4 Sole Obligation. This Section 8 states SWETI’s sole obligation, and Subscriber’s sole and exclusive remedy, with respect to infringement of proprietary and intellectual property rights. Notwithstanding anything else in this Section 8, SWETI’s aggregate liability for indemnification pursuant to this Section 10 shall not exceed the original Subscription Fees paid by Subscriber to SWETI for the infringing Software.
10.5 Indemnification by Subscriber. Subject to this Agreement, Subscriber shall defend, indemnify and hold SWETI harmless against any loss or damage (including reasonable attorney fees) incurred in connection with claims made or brought against SWETI by a third party alleging that the Subscriber Data infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that SWETI (a) promptly gives written notice of the claim to Subscriber; (b) gives Subscriber sole control of the defense and settlement of the claim (provided that Subscriber may not settle or defend any claim unless it unconditionally releases SWETI of all liability); and (c) provides to Subscriber, at Subscriber’s cost, all reasonable assistance.
11. ASSIGNMENT, ENTIRE AGREEMENT, AND AMENDMENT
11.1 Subscriber 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.
11.2 SWETImay, without Your consent, assign this Agreement to any member of SWETI or in connection with any merger or change of control of SWETI or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill 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.
11.3 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 SWETI 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.
11.4 SWETI 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) 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 SWETI 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.
12.1 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. RELATIONSHIP OF THE PARTIES
13.1 The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
14.1 All notices provided by SWETI to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail 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. You must give notice to SWETI via email to [email protected] All notices shall be deemed to have been given immediately upon delivery by electronic mail, it is reasonable for You to request confirmation of receipt to verify this.
15. GOVERNING LAW
15.1 This Agreement shall be governed by the laws of the State of Texas, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Travis County, Texas. 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, Agents or End Users.
16.1 Sections 1, 3.1, 4 and 9-15 shall survive any termination of our agreement with respect to the use of the Services by You, Agents 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.
17.1 Subscriber agrees that SWETI may reference Subscriber’s execution of this Agreement and its status as a User of the Software on SWETI’s website, in marketing materials and in sales presentations. SWETI may use Subscriber’s trade names and trademarks in connection with such usage.
18.1 Both Parties shall comply with all applicable export laws and regulations of the United States of America, the European Union, and other countries as they apply to this Agreement (“Applicable Export Laws”) and shall assure that no Software is: (a) exported, directly or indirectly, in violation of Applicable Export Laws; or (b) intended to be used for any purposes prohibited by the Applicable Export Laws, including nuclear, chemical, or biological weapons proliferation. The Parties shall not take any actions that would cause either Party to violate the U.S. Foreign Corrupt Practices Act of 1997, as amended.