SWYM TERMS OF SERVICE AGREEMENT

Swym Corporation, a Delaware corporation (“Swym”), provides a white-label cross-device engagement platform for retail brands aimed at optimizing a seamless shopping experience for consumers across devices (the “Swym Platform”). The following terms and conditions govern all use of the Swym website (swym.it) (the “Swym Site”) and all services made available to you (“you” or “Client”) by Swym at or through the Swym Site or otherwise, including the Swym Platform and any implementation, integration, consulting and similar services (“Professional Services”) provided in connection with the Swym Platform (the Swym Site, the Swym Platform, and all services, collectively, the “Services”).

By subscribing to the Services or otherwise agreeing to a Subscription Order (defined below), you are agreeing to this Terms of Service Agreement, including without limitation, Swym’s Privacy Policy, which is hereby incorporated in full (collectively, the “Agreement”).

  1. DEFINITIONS.

The following terms used in this Agreement have the meanings set forth below:

  • Client’s Marks” means all trademarks, service marks, trade names, brands, logos, designs and similar identifiers used by Client to identify its goods and/or services.
  • Client Material” means Client’s Marks and content, designs, specifications, instructions, software, services, data, information, Customer Data or materials provided by Client to Swym or which Client integrates with or uses in connection with the Services or any Swym Material.
  • Confidential Information” has the meaning set forth in Section 5.
  • Customer Data” means all electronic data or information pertaining to Client’s customers resulting from Client’s use of the Services.
  • Non-Public Personal Information” means personally-identifiable information, including without limitation, an individual’s name, email address, telephone number, and financial account numbers (i.e., credit card, checking account, savings account, etc.).
  • Platform Services” means Swym’s proprietary software, code, algorithms and other tools comprising the Swym Platform and ordered by Client pursuant to a Subscription Order.
  • Professional Services” means the implementation, integration, consulting and similar services described in a Subscription Order.
  • Subscription Order” means the physical, electronic or online Swym order form, as applicable, which is accepted by Swym and further describes the Services purchased by Client. Each Subscription Order entered into hereunder shall be governed by the terms hereof. In the event of a conflict or inconsistency between a term in a Subscription Order and this Agreement, the terms set forth in the Subscription Order shall control.
  • Subscription Term” means the subscription period for Platform Services and/or Professional Services set forth in an applicable Subscription Order.
  • Swym Marks” means all trademarks, service marks, trade names, brands, logos, designs and similar identifiers used by Swym to identify its goods and/or services.
  • Swym Material” means all Swym Marks and all content, designs, specifications, instructions, software, code, services, data, information or materials provided by Swym to Client.
  1. SERVICES.
  • Provision of the Services. Swym shall make the Platform Services available to Client and provide the Professional Services pursuant to this Agreement and any applicable Subscription Order during the Subscription Term.
  • Grant of Limited License. Swym hereby grants to Client a worldwide, limited, non-exclusive, and non-transferable license to use the Platform Services under Client’s Marks during the Subscription Term solely for Client’s internal use and not, by implication or otherwise, to any parent, subsidiary or affiliate of Client. The license granted herein does not transfer any ownership in the Swym Platform, the Services, or any part thereof. Except as expressly provided herein, this Agreement grants no express or implied license, right or other interest in or to any of Swym’s intellectual property rights and Swym reserves all rights, title and interest in and to the Swym Platform and the Services, including all intellectual property rights.
  • Trademarks. Client shall have exclusive ownership of, and all rights in and to, Client’s Marks, and any other Client Material provided to Swym in connection with Client’s limited license to use the Platform Services under Client’s Marks. Notwithstanding the foregoing, Client hereby grants Swym a worldwide, limited, perpetual, non-exclusive, non-transferable license to use Client’s Marks solely in connection with the provision of the Platform Services. Swym shall have exclusive ownership of, and all rights in and to, all Swym Marks. Nothing herein shall be construed as granting to Client any rights in or to, or the right to use, the Swym Marks. Any use of the Swym Marks by Client requires the prior written consent of Swym.
  • Restrictions. Except as expressly stated herein, Client may not: (a) modify, adapt, translate, copy or create derivative works based on the Swym Platform or the Services; (b) reverse engineer the Swym Platform or the Services, or any part thereof; or (c) access the Swym Platform or the Services for the purpose of (i) developing a competitive product or service, or (ii) copying any ideas, features, functions or graphics of the Swym Platform or the Services.
  • Customer Data. Through provision of the Services, Swym may collect and have access to information relating to Client’s customers, including but not limited to Non-Public Personal Information (“Customer Data”). As between Client and Swym, Client exclusively owns all rights, title and interest in and to all Customer Data. Client, however, grants Swym a royalty-free, perpetual, non-exclusive license to access and audit Customer Data in order to provide or improve the provision of the Services and to validate and/or compute fees for any Services. All Customer Data shall constitute Confidential Information of Client and shall be governed by Section 5 herein.
  • Improvements. Swym shall own all rights, title and interest, including but not limited to, all intellectual property rights, in and to all improvements to the Platform Services and any new programs, upgrades, modifications or enhancements developed by Swym in connection with providing the Services to Client, even where such refinements and improvements result from a request by or feedback from Client. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Swym by virtue of this Agreement or otherwise, Client hereby assigns to Swym all rights, title, and interest which Client may have in and to such refinements and improvements.
  • Modifications to Platform Services. Client acknowledges that Swym may add, delete, change, suspend or terminate features, functionality or other aspects of the Platform Services at any time and for any reason, and that Swym is under no obligation to upgrade or update the Platform Services or ensure compatibility or continuity between any version of the Platform Services and any prior or subsequent versions thereof.
  1. TERMS OF USE.
  • Client’s Responsibilities. Client is solely responsible for: (a) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Material provided by Client to Swym or which Client integrates with or uses in connection with the Services; and (b) the creation, initiation and sending of emails utilizing the Services, including but not limited to, content (other than material provided by Swym to Client), recipients, and timing of such emails. Client shall prevent unauthorized access to, or use of, the Services, and notify Swym promptly of any unauthorized access or use. Client shall comply with all applicable local, state, federal and foreign laws in using the Services.
  • Privacy. Client agrees:
  • to publish, maintain and abide by a privacy policy that: (i) is consistent with Client’s use of the information Client collects from individuals using the Platform Services; (ii) complies with applicable law and applicable self-regulatory principles, if any; and (iii) prominently and adequately discloses Client’s collection, use, disclosure, storage, and aggregation of any information Client collects from individuals using the Platform Services, including with respect to Non-Public Personal Information, collected via cookies, locally-stored objects or other tracking technologies;
  • that Client will not (and will not allow any third party to) use the Platform Services to track or collect Non-Public Personal Information without properly informing (e.g., through a privacy policy) individuals of Client’s data collection, use, disclosure, storage, and aggregation practices (and only so long as such use conforms with any of Client’s other obligations under this Agreement);
  • that Client will not do any act to render any of the above obligations and notices untrue and will not include contradictory language in any privacy policy, that Client is responsible for ensuring that no other statement in Client’s privacy policy contradicts or nullifies any of the above statements, that Client will not rely on Swym’s opinion or direction as a substitute for legal advice, and that Client will retain sole responsibility for ensuring that its conduct and policies (including Client’s privacy policy) are sufficiently protective of Client’s end users’ rights.
  • User Guidelines. Client shall use the Services solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise commercially exploit or make the Platform Services available to any third party except as contemplated by this Agreement; (b) send via or in connection with the use of the Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy rights; (c) send via or in connection with the use of the Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the Services any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Services or the information contained therein; or (f) attempt to gain unauthorized access to the Services or its related systems or networks.
  1. FEES AND PAYMENT.
  • Services Fees. All Services are available according to pricing published on the Swym Site at http://swym.it/pricing or as set forth in an applicable Subscription Order. Pricing is subject to change from time to time on a prospective basis at Swym’s sole discretion; provided however that you may terminate a Subscription Order within fourteen (14) days of receiving a price adjustment notice, and your failure to terminate this Agreement on or before the expiration of such termination period shall constitute your acceptance of the new pricing terms. Client agrees to pay all fees due with respect to Client’s use of the Services. Fees are payable in U.S. dollars. Except as otherwise specified in an applicable Subscription Order, fees are based on the Services purchased and not actual usage. Platform Services purchased cannot be decreased during the Subscription Term.
  • Payment. Payment of all fees must be made in advance by a valid credit card accepted by Swym unless other payment arrangements have been made between you and Swym. By approving a Subscription Order for the Platform Services, you authorize Swym to charge your credit card monthly, in advance, for the fees set forth in the Subscription Order. If Swym is for any reason unable to effect automatic payment via your credit card, you will be notified by email and access to the Platform Services will be disabled until payment is received. Late payments shall accrue interest of 1.5% per month, or the maximum rate allowable by law, whichever is less.
  • Taxes. Unless otherwise stated, fees do not include any direct or indirect local, state, or federal taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Swym’s net income or property. If Swym has the legal obligation to collect or pay Taxes for which Client is responsible under this Agreement, the appropriate amount shall be paid by Client.
  1. CONFIDENTIALITY.
  • Definition of Confidential Information. “Confidential Information” means any information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation data, documents, prototypes, samples, plant and equipment), of a confidential or proprietary nature, or that is designated “Confidential.” Confidential Information may also include information previously disclosed to the Disclosing Party by third parties. Confidential Information, however, will not include any information that: (a) was publicly known and made generally available in the public domain before the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records before the time of disclosure; (d) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.
  • Confidentiality. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees or contractors, except to those employees or contractors of the Receiving Party with a need to know. Each party shall use its best efforts and shall take every reasonable precaution to protect and maintain the confidentiality of the Confidential Information of the other party, which precautions shall be at least equivalent in scope and effect to the measures taken by that party to protect its own most confidential and proprietary information.
  • Disclosure Required by Law. Notwithstanding anything to the contrary, either party may disclose Confidential Information as required by law, provided that the Receiving Party gives the Disclosing Party written notice of such requirement before disclosure and fully cooperates to limit the disclosure of such Confidential Information to the minimum extent necessary to comply with the legal disclosure obligation.
  1. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS.
  • Mutual Representations and Warranties. Each party represents and warrants that:
  • it has the right and authority to enter into this Agreement;
  • by entering into this Agreement it will not violate, conflict with or cause a material default under any other agreements;
  • at all times during the term of this Agreement, it shall comply with all applicable laws, rules and regulations, including without limitation, Section 5 of the Federal Trade Commission Act and other statutes and regulations prohibiting unfair or deceptive marketing practices, the CAN-SPAM Act, and other consumer protection and privacy laws, regulations, and guidelines; and
  • to its knowledge, no part of any materials provided by it to the other party infringes upon any third-party copyright, patent, trademark, trade secret or other proprietary or intellectual property rights.
  • Client Representations and Warranties. Client represents and warrants that:
  • Client has exclusive ownership of, and all rights in and to, all Client’s Marks, and all other Client Material provided to Swym or which Client integrates with or uses in connection with the Services or any Swym Material;
  • Client has the exclusive ownership of, and all rights in and to, or the right to license and provide the Client Material to Swym, and that the use, copying, modification, integration and publication of the Client Material by Swym in connection with its provision of the Services: (i) will not infringe, violate or misappropriate any third-party copyright, patent, trade secret, or other proprietary rights; (ii) will not infringe any rights of publicity or privacy; and (iii) will not be defamatory or obscene or otherwise violate any law;
  • Client will enter into binding and enforceable agreements with each end user of the Platform Services provided under this Agreement and any applicable Subscription Order, that govern their use of the Platform Services, including terms of service and privacy policies that provide prominent and clear notices to and requires consents from end users with respect to the collection, use, storage, aggregation or other processing of Client’s Customer Data, including Non-Public Personal Information, and including any transfer of such Customer Data and Non-Public Personal Information to Swym in connection with the provision of the Services; and
  • Client will, at its own expense, comply with all applicable laws, rules and regulations, including without limitation all privacy and data protection laws, in connection with Client’s use of the Services and information derived therefrom (including but not limited to Customer Data) and the performance of Client’s obligations under this Agreement.
  • Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, THE SERVICES AND SWYM MATERIAL PROVIDED BY SWYM IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED SOLELY ON AN AS-IS BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY ARISING OUT OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE, WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND NON-INFRINGEMENT. SWYM DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR ACHIEVE THE RESULTS DESIRED BY CLIENT OR THAT ANY CODE, FIXES, PATCHES, REVISIONS, UPDATES OR MODULES, IF ANY PROVIDED BY SWYM IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WILL BE BUG-FREE OR ERROR-FREE OR THAT ANY CORRECTIONS OR FIXES WILL BE EFFECTIVE.
  1. INDEMNIFICATION.
  • Indemnification by Client. Client agrees to defend, indemnify and hold Swym and its officers, directors, employees, and agents (each a “Swym Indemnitee”) harmless from and against any claims, demands, lawsuits, actions, proceedings or investigations made by any third party (“Claim”) from and against any fees, costs, sanctions, penalties, damages, losses or expenses (including reasonable attorneys’ fees) due to or arising out of: (a) Client’s use or misuse of the Services; (b) allegations that Client Material and/or any other information or material provided to Swym by Client in connection with the provision of the Services, infringe the intellectual property rights or other rights of a third party; (c) Swym’s use, in connection with its provision of the Services as provided herein, of any Customer Data provided by Client which has harmed a third party; (d) Client’s violations of applicable laws, rules or regulations in connection with its use of the Services, including without limitation, privacy laws; and (e) Client’s breach of the representations, warranties and covenants made by Client herein.
  • Procedure. Swym agrees to use reasonable efforts to promptly notify Client in writing of a Claim for which indemnification is sought and to provide Client with all non-monetary assistance, information and authority reasonably necessary for the defense and settlement of such Claim. Swym reserves the right, at Client’s expense, to assume the exclusive defense and control of any Claim for which Client is required to indemnify any Swym Indemnitee and Client agrees to cooperate with the Swym Indemnitee in the defense of the Claim. Client shall obtain Swym’s prior written consent to any settlement of a Claim, said consent not to be unreasonably withheld, conditioned or delayed.
  1. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES.

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL A PARTY’S (INCLUDING THE PARTY’S OFFICERS, DIRECTORS, EMPLOYEES AND AFFILIATES) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID BY CLIENT TO SWYM FOR THE SERVICES LESS ANY REFUNDS OR CREDITS RECEIVED BY CLIENT. IN NO EVENT SHALL A PARTY (INCLUDING THE PARTY’S OFFICERS, DIRECTORS, EMPLOYEES AND AFFILIATES) HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES’ AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH THEIR OBLIGATIONS UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. NO CLAIM MAY BE BROUGHT BY CLIENT UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.

  1. TERM AND TERMINATION.
  • Agreement Term. This Agreement commences upon Client’s first access to or use of the Services and continues until terminated as set forth in this Section 9 (the “Term”).
  • Subscription Term. A subscription to the Services commences on the date on which Swym makes the Swym Platform available to Client upon payment of the applicable monthly subscription fee. Unless otherwise set forth in a Subscription Order, subscriptions shall automatically renew for additional periods of one month for the fees set forth in the applicable Subscription Order unless either party gives the other notice of non-renewal at least ten (10) days prior to the end of the relevant Subscription Term.
  • Termination for Convenience. Either party may terminate this Agreement without cause upon fourteen (14) days written notice to the other party.
  • Termination for Cause. A party may terminate this Agreement for cause: (a) upon seven (7) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately 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. Upon any termination for cause by Swym, Client shall remain obligated to pay all fees owed, which fees shall become immediately due and payable in full.
  • Effect of Termination. Upon termination or expiration of this Agreement all licenses granted herein shall be immediately revoked and terminated. The rights and obligations of the parties set forth in Sections 5, 6, 7, 8 and 10 shall survive termination or expiration of the Agreement, and you shall immediately remit all outstanding amounts due under the this Agreement which accrued prior to the termination of this Agreement. THE TERMINATION PROVISIONS IN THIS SECTION 9 STATE CLIENT’S SOLE RIGHTS AND EXCLUSIVE REMEDY FOR SWYM’S FAILURE TO DEVELOP, OPERATE, OR PROVIDE THE PLATFORM SERVICES.
  1. MISCELLANEOUS.
  • Relationship of the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, affiliate, employer-employee or principal-agent relationship, but rather the relationship of the parties shall be that of independent parties.
  • No Third-Party Beneficiaries. The parties agree that there are no third-party beneficiaries to this Agreement.
  • Waiver and Cumulative Remedies. The failure to enforce any provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect a party’s enforcement rights thereafter. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
  • Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
  • Attorneys’ Fees. If either party hereto resorts to legal action for the redress of a breach of this Agreement, the prevailing party shall be entitled to an award of costs and reasonable attorneys’ fees.
  • Changes to Agreement. Swym may modify the terms of this Agreement and may discontinue or change any aspects of the Services at its sole discretion (on a prospective basis); provided, however, that Swym provides adequate written or electronic notice to you of any material changes (the posting of the Agreement on the Swym Site shall constitute effective electronic notice). You should review the Swym Site regularly. Changes will not apply retroactively and will become effective upon those changes being made live.
  • Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns; provided, however, that this Agreement shall not be assigned by Client without Swym’s prior written consent. Swym may assign this Agreement in connection with a change of control, reorganization, or sale of at least a majority of its assets or outstanding voting securities.
  • Severability. If any provision of this Agreement shall be held invalid or unenforceable, the remaining provisions shall not be affected thereby.
  • Governing Law. This Agreement shall be governed by the laws of the State of Washington, without regard to its choice-of-law principles. Any dispute arising out of or related to this Agreement or the Services shall be subject to the exclusive jurisdiction and venue of the Washington state courts and/or the United States District Court for the Western District of Washington, and the parties hereby agree to the personal and exclusive jurisdiction and venue of these courts.
  • Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the second business day after sending by email. Except as otherwise agreed, all notices required or permitted to be provided to Client hereunder shall be sent to the mail address or email address provided by Client to Swym in connection with the Subscription Order or through the Swym Site. Except as otherwise agreed, all notices required or permitted to be provided to Swym shall be sent to the following address: Swym Corporation, Attn: CEO, 500 Yale Ave. N., Seattle, WA 98109.
  • Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, whether written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.