Terms & Conditions
(MSA USA July 31, 2016)
Acceptance of these terms and conditions create a contract (the “Agreement”) between you (“Customer”) and Swarmify, Inc. (“Swarmify”) whose address is 927 E. New Haven Ave. Suite 208, Melbourne, FL 32901. Please read the Agreement carefully. This Agreement provides the general terms and conditions applicable to Customer’s purchase of hosting and related services (“Service”) from Swarmify.
ARTICLE 1. ORDERS FOR AND DELIVERY OF SERVICE
1.1 Submission and Acceptance of Customer Order(s). Customer may submit requests for Service in a form designated by Swarmify (“Customer Order”). Customer Orders shall contain the duration for which Service is ordered (“Service Term”). Service will continue on a month to month basis at the expiration of the Service Term at Swarmify then current rates. Swarmify will notify Customer of acceptance of the Customer Order by delivering (in writing or electronically) the date by which Swarmify will commence Service (the “Customer Commence Date”) or by delivering the Service. Renewal Customer Orders will be accepted by Swarmify’ continuation of Service. If Customer submits Customer Orders electronically, Customer shall assure that any passwords or access devices are available only to those having authority to submit Customer Orders. Customer will pay Swarmify then current charges for moves, adds or changes agreed to by Swarmify in respect of any Customer Order or Service.
1.2 Credit Approval and Deposits. Customer will provide Swarmify with credit information as requested and delivery of Service is subject to credit approval. Swarmify may require Customer to make a deposit as a condition of Swarmify’ acceptance of any Customer Order or continuation of: a) usage-based Services; or b) non-usage based Service where Customer fails to timely pay Swarmify hereunder or Swarmify reasonably determines that Customer has had an adverse change in financial condition. Deposits will not exceed 2 months’ estimated charges for Service and are due upon Swarmify’ written request. When Service is discontinued, the deposit will be credited to Customer’s account and the balance refunded.
1.3 Scheduled Maintenance and Local Access. Scheduled maintenance will not normally result in Service interruption. If scheduled maintenance requires Service interruption, Swarmify will: (i) provide Customer 7 days’ prior written notice, (ii) work with Customer to minimize such interruptions and (iii) use commercially reasonable efforts to perform such maintenance between midnight and 6:00 a.m. US eastern time.
ARTICLE 2. BILLING AND PAYMENT
2.1 Commencement of Billing. Swarmify will deliver written or electronic notice to Customer when Service has been tested and is functioning properly (a “Commencement Notice”) at which time billing will commence (“Service Commencement Date”). If Customer notifies Swarmify within 3 days after delivery of the Commencement Notice that Service is not functioning properly, Swarmify will correct any deficiencies and, upon Customer’s request, credit Customer’s account in the amount of 1/30 of the applicable monthly recurring charges (MRC) for each day the Service did not function properly.
2.2 Payment of Invoices and Disputes. Invoices are delivered monthly and due 30 days after the invoice date. Fixed charges are billed in advance and usage-based charges are billed in arrears. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law (whichever is less). Customer is responsible for all charges in respect of the Service, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed). Disputes must be submitted in writing within 30 days from the date of the invoice. If the dispute is resolved against Customer, Customer shall pay such amounts plus interest from the date originally due.
2.3 Taxes and Fees. Excluding taxes based on Swarmify’ net income, Customer is responsible for all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, withholding, excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (including regulatory surcharges), whether imposed on Swarmify or a Swarmify affiliate, along with similar charges stated in a Customer Order (collectively “Taxes and Fees”). Some Taxes and Fees are recovered through imposition of a percentage surcharge on the charges for Service. If Customer is required by law to make any deduction or withholding of withholding Taxes from any payment due hereunder to Swarmify, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Customer shall be increased so that, after any such deduction or withholding for such withholding Taxes, the net amount received by Swarmify will not be less than Swarmify would have received had no such deduction or withholding been required. Charges for Service are exclusive of Taxes and Fees. Customer may present Swarmify with an exemption certificate eliminating Swarmify’ liability to pay certain Taxes and Fees; Swarmify will give effect thereto prospectively.
2.4 Regulatory and Legal Changes. If changes in applicable law, regulation, rule or order materially affect delivery of Service, the parties will negotiate appropriate changes to this Agreement. If the parties cannot reach agreement within 30 days after Swarmify’ notice requesting renegotiation: (a) Swarmify may, on a prospective basis after such 30 days period, pass any increased delivery costs on to Customer and (b) if Swarmify does so, Customer may terminate the affected Service on notice to Swarmify delivered within 30 days.
2.5 Cancellation and Termination Charges. (A) Customer may cancel a Customer Order (or portion thereof) prior to the commencement of service upon written notice to Swarmify identifying the affected Customer Order and Service. If Customer does so there will be no cancellation fees. (B) Customer may terminate specified Service(s) after the delivery of a Commencement Notice upon 30 days’ written notice to Swarmify. If Customer does so, or if Service is terminated by Swarmify hereunder as the result of Customer’s default, Customer shall pay Swarmify a termination charge equal to the sum of: (i) all unpaid amounts for Service actually provided; (ii) 100% of the remaining monthly recurring charges for months 1-12 of the Service Term; (iii) 50% of the remaining monthly recurring charges for month 13 through the end of the Service Term; and (iv) if not recovered by the foregoing, any termination liability payable to third parties resulting from the termination. Customer acknowledges that the charges in this Section are a genuine estimate of Swarmify’ actual damages and are not a penalty.
ARTICLE 3. DEFAULT
If (A) Customer fails to make any payment when due and such failure continues for 5 business days after written notice from Swarmify, or (B) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, or (C) either party commits an act of bankruptcy, or goes or is put into liquidation, or has a receiver appointed over all or any part of its business or assets or if an administration order is made in respect of a party, then the non-defaulting party may, upon written notice terminate this Agreement and/or any Customer Order, in whole or in part.
ARTICLE 4. LIABILITIES AND SERVICE LEVELS
4.1 No Special Damages. Except in the case of a party’s breach of Section 5.8 (Confidentiality), but notwithstanding any other provision, neither party shall be liable for any loss of profits arising directly or indirectly, loss of revenues or business, arising directly or indirectly, loss of goodwill, loss of anticipated savings, loss of customers, loss of data or interference with business or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or in connection with this Agreement or any Customer Order or any other cause whatsoever, including breach of contract, breach of warranty, negligence, or strict liability.
4.2 Personal Injury and Fraud. Nothing in this Agreement shall be construed as limiting the liability of either party for personal injury or death resulting from the negligence of a party or its employees, or for fraud.
4.3 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE, ALL REPRESENTATIONS, WARRANTIES OR OTHER TERMS WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED TERMS AS TO CONDITION, QUALITY, PERFORMANCE OR FITNESS FOR PURPOSE OF THE SERVICE, ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
4.4 Service Levels. The “Service Level” commitments applicable to Services are contained in the Service Schedules for each Service. If Swarmify does not meet a Service Level, a credit will be issued to Customer as stated in the applicable Service Schedule on Customer’s request. Swarmify’ maintenance log and trouble ticketing systems are used to calculate Service Level events. To request a credit, Customer must contact Swarmify Customer Service (contact information is located at www.swarmify.wpengine.com) or deliver a written request (with sufficient detail to identify the affected Service) within 30 days after the end of the month in which the event occurred. Total monthly credits will never exceed the charges for the affected Service for that month. Customer’s sole remedies for any non-performance, outages, failures to deliver or defects in Service are contained in the Service Levels applicable to the affected Service.
ARTICLE 5. GENERAL TERMS
5.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”). In the event Swarmify is unable to deliver Service as a result of a force majeure event, Customer shall not be obligated to pay Swarmify for the affected Service for the duration of the event. Force majeure events and scheduled maintenance under section 1.3 are considered “Excused Outages.”
5.2 Assignment and Resale. Customer may not assign its rights or obligations under this Agreement or any Customer Order without the prior written consent of Swarmify, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. Unless otherwise provided in a Service Schedule but always subject to US & Multilateral sanctions and export control regulations, Customer may provide Service to third parties or use the Services in connection with goods or services by Customer to third parties (“Customer Provided Services”) provided that Customer shall indemnify, defend and hold Swarmify and its affiliates harmless from any claims arising from or related to any Customer Provided Services. If Customer sells telecommunications services, Customer warrants that it has and will at all times have the requisite authority with appropriate regulatory agencies in respect of the same. Nothing in this Agreement, express or implied, confers upon any third party any right, benefit or remedy under or by reason of this Agreement.
5.3 Affiliates. Service may be provided to Customer by an affiliate of Swarmify, but Swarmify shall remain responsible to Customer for the delivery and performance of the Service. Customer’s affiliates may purchase Service pursuant to this Agreement, and Customer shall be jointly and severally liable for all claims and liabilities related to Service ordered by any Customer affiliate.
5.4 Notices. Notices shall be in writing and deemed received if delivered personally, sent via facsimile, pre-paid overnight courier, electronic mail (if an e-mail address is provided) or sent by First Class National or International Post. Notices to Swarmify shall be addressed as follows:
If for legal purposes:
927 E New Haven Ave.Suite 208
Melbourne, FL 32901
If for billing inquiries/disputes, requests for Service Level credits and/or requests for disconnection of Service (other than for default):
927 E New Haven Ave.Suite 208
Melbourne, FL 32901
Notices may be provided to any electronic or physical address identified on the Customer Order. Either party may change its notice address upon notice to the other party. All notices shall be deemed given on (i) the date delivered if delivered personally, by facsimile or e-mail (or the next business day if delivered on a weekend or legal holiday), (ii) the business day after dispatch if sent by overnight courier, or (iii) the third business day after dispatch if otherwise sent.
5.6 Data Protection. During the performance of this Agreement, it may be necessary for Swarmify to process and store billing, utilization and other data necessary for the operation of its network and for the performance of its obligations under this Agreement. You may withdraw consent to our processing of traffic data at any time by serving notice of termination of those Services in accordance with clause 2.5. In the event Swarmify has access to and otherwise processes personal data, then you agree that Swarmify (or its affiliates) may use such data and other Customer data, in accordance with applicable law and regulation, for the performance of Swarmify’ obligations and the exercise of Swarmify’ rights under this Agreement. Swarmify provides some of its Services (for example, call recording features related to Conferencing Services and Managed Security Services) as your data processor: Where this is the case, Swarmify will only process personal data in accordance with your instructions, including as set out in this Agreement, and will implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration or unauthorized disclosure or access. In addition, both for Services where Swarmify acts as a processor and more generally, the parties acknowledge and agree that it may be necessary for Swarmify to transfer, process and store data outside the United States in order for Swarmify to perform its obligations under this Agreement. Customer hereby agrees that nothing in this Agreement will prevent Swarmify carrying out any data processing operations (including but not limited to the retention and disclosure of data) in order for Swarmify to comply with applicable law or regulatory obligations. The words ‘data processor’, ‘data controller’ and ‘personal data’ shall have the meanings set out in the applicable data privacy laws and regulations.
5.7 Intellectual Property and Publicity. Neither party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, trade names, patents, trade secrets or other form of intellectual property of the other party or its affiliates without the express prior written authorization of the other party. Neither party shall issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed between the parties in writing.
5.8 Confidentiality. Either party may disclose (Disclosing Party) to the other party (Receiving Party) Confidential Information of the Disclosing Party. ‘Confidential Information’ means without limitation, any information which is identified as confidential at the time of disclosure, the content of this Agreement and any information which ought reasonably to be regarded as confidential. Confidential information does not include information that: (a) is in the possession of the Receiving Party without any obligation of confidentiality prior to disclosure by the Disclosing Party; (b) is published or becomes available to others, without restriction and without breach of this Agreement by the Receiving Party; (c) becomes available to the Receiving Party from others who are not in breach of any obligation of confidence; and (d) is developed by the Receiving Party independent of and without use of the Confidential Information. The Receiving Party shall; (i) use Confidential Information only to perform its obligations under this Agreement; (ii) not disclose the Confidential Information without the prior written consent of the Disclosing Party, other than to its employees, Affiliates, consultants, subcontractors and advisors who have a need to know and are bound by similar confidentiality obligations; and (iii) protect Confidential Information in the same manner as it protects its own confidential information. The obligations under this Section 5.8 shall continue for a period of two (2) years after termination or expiry of the Agreement.
5.9 Governing Law; Entire Agreement; Amendment. This Agreement shall be governed and construed in accordance with the laws of the United States, without regard to its choice of law rules. This Agreement, including any Service Schedule(s) and Customer Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior written or oral agreements relating to the Service. The parties confirm that no reliance has been placed upon and the parties shall have no right or remedy in respect of any statement, representation, assurance or warranty (whether made negligently or innocently) other than as set forth in this Agreement. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
5.10 Order of Precedence. In the event of any conflict between this Agreement, the Term of any Service Schedule and/or Customer Order, the order of precedence is; (i) The Service Schedule; (ii) this Agreement; and (3) the Customer Order.
5.11 Subcontracting. Swarmify may, without consent, subcontract the provision of a Service, or a portion of a Service, provided that Swarmify will continue to be liable for the performance of such subcontractors in accordance with the terms of this Agreement.
5.12 Relationship; Third Parties and Counterparts. The relationship between the parties is not that of partners, agents, or joint venturers. Nothing in this Agreement shall confer upon any third party any right, benefit or remedy of any nature under this Agreement. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Facsimile signatures and signatures transmitted and received electronically shall be sufficient to bind the parties to this Agreement.
ARTICLE 6. CHARGES
6.1 Charge Components. The manner of billing and applicable charges shall be set forth in the Customer Order and shall remain in effect during the Service Term. Charges may consist of: (a) a non-recurring installation charge; (b) a monthly recurring charge (if applicable); (c) monthly usage charges (if applicable); and (d) expedite fee (if applicable). Charges may vary depending on “Region” (a large geographic area such as North America, defined at Swarmify’s discretion, where Swarmify Services are provided).
6.2 Caching Service and Streaming Service. For Caching Service or Streaming Service, Customer will be billed using the following method of billing: Actual Usage (“Actual Usage”). Swarmify will invoice Customer for the total bytes of content utilized or transferred at the price per-GB set forth in the applicable Service Order.
ARTICLE 7. INTELLECTUAL PROPERTY; CUSTOMER CONTENT
7.1 Each party agrees that it will not, directly or indirectly, reverse engineer, access software of the other party, or otherwise attempt to derive source code, trade secrets or other intellectual property relating to the Service from the other party. Notwithstanding anything to the contrary in the Agreement, Customer grants Swarmify a limited, non-exclusive, royalty free license to any data or content provided by Customer in using the Service solely and exclusively for the purpose of and to the extent necessary to provide the Service.
7.2 Swarmify reserves the right to adhere to the safe harbor provisions of: (i) The Digital Millennium Copyright Act: (ii) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (“Directive”); and (iii) the adoption of the Directive into national legislation including without limitation the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No. 2013) and any other equivalent legislation in any country or jurisdiction.
7.3 Customer shall indemnify, defend and hold Swarmify, its directors, officers, and employees harmless from any loss, damage, expense or liability (including legal fees) related to any actual or alleged third party claim arising from or relating to any content or services provided or delivered by or for Customer in connection with the Service, including without limiting the foregoing, any infringement claim based upon any patent, copyright, trademark, service mark, trade secret or any other intellectual property rights in any country or jurisdiction.
7.4 While Swarmify automatically replicates all content uploaded to Swarmify Storage Service, the Service is not a “vault” service and Swarmify recommends that Customer maintain a master copy of all content. Swarmify shall have no liability for any claims relating to the destruction, loss or corruption of content.
ARTICLE 8. SERVICE LEVEL CONTRACTS
8.1 Content Delivery Services. Swarmify’ Content Delivery Services include the Content Caching & Download and Streaming Services that are monitored through 3rd party or Swarmify test-agents distributed globally across the Swarmify content delivery network. Each test-agent takes sample measurements every fifteen (15) minutes to calculate SLA’s, as more specifically set forth below.
(A) Availability (“Availability SLA”). A Swarmify Delivery Service is determined to be “unavailable” when test-agents within a Region reports a ”request time-out”, “connection refusal”, “receive time-out” or other similar error message (“Unavailable” or “Unavailability”). Availability SLA is calculated based on the cumulative Unavailability of a Swarmify Delivery Service within a Region for a given calendar month. In the event Swarmify fails to meet the Availability SLA for the applicable Region, Customer shall be entitled to a service credit off of the monthly recurring charge for the applicable Service, as set forth in the chart below:
For North America (NA), European (EU) Region, Asia Pacific (not including China) (APAC), Middle East, Global Region including LATAM:
|Availability SLA||Availability||Credit Due|
|100 %||95 % – 98.99 %||15 %|
|90 % – 94.9 %||25 %|
|89.9 % and below||3 % credit for each 1 % of Unavailability|
(B) Chronic Outage. Customer may elect to terminate without termination liability a Caching Service or Streaming Service prior to the end of the Service Term if such Service is Unavailable on three (3) or more separate occasions of three (3) or more consecutive hours each. Customer must exercise its right to terminate the Service, in writing, within thirty (30) days after the event giving rise to a right of termination.
8.2 Limitations. Customer credits shall not exceed customer’s monthly commitment to Swarmify. Customer will not be entitled to receive any otherwise applicable service credit if the failure to achieve an applicable SLA results from (a) inaccessibility, erroneous measurements or non-responses attributable to the testing agents; (b) inaccessibility to any third party service or the third party’s service provider; (c) Customer Equipment or Customer action/inaction; or (d) an Excused Outage. Service Levels are not valid for customers with geographic restrictions on content delivery or in months in which a Disproportionate Peak occurs. Customer shall not be entitled to service credits under multiple SLA’s for a single event. Regions notwithstanding, Swarmify reserves the right to deliver content from anywhere on its content delivery network. The credits and any other remedies specified in this Section 6 set forth the sole and exclusive remedies of Customer for any interruptions or delays or other Service-related issues under this Service Schedule.
ARTICLE 9. RESALE RESTRICTION
Notwithstanding anything to the contrary in the Agreement, Customer is prohibited from reselling any Service provided pursuant to this Service Schedule without the express written consent of Swarmify.
ARTICLE 10. PUBLICITY
Customer agrees that Swarmify may identify Customer as a customer of Swarmify and may announce the execution of this Agreement (including the Services contemplated herein) (each of the foregoing and the terms of any joint press release, a “Permitted Disclosure”). Customer grants Swarmify the right, revocable by Customer at its sole discretion by written notice to Swarmify, to use Customer’s logo(s) in connection with any Permitted Disclosure. Should Swarmify desire to issue a press release or other public statement concerning information about Swarmify’s relationship with Customer, Customer agrees to work in good faith with Swarmify to create a mutually agreeable joint press release and/or to define the mutually agreeable terms that may be so disclosed.
ARTICLE 11. ADDITIONAL FEATURES / FUNCTIONALITY
Any other features or functionality not described herein shall be provisioned under the Agreement pursuant to Swarmify’ then-current terms and conditions applicable to such features or functionality. A copy of terms and conditions applicable to such Services may be obtained at www.swarmify.wpengine.com or by request to Swarmify.