This Swift Mobility B.V. License Agreement (the "Agreement") is made and entered into by and between Swift Mobility B.V. and the entity or person agreeing to these terms ("Customer"). This Agreement is effective as of the date Customer clicks to accept the Agreement (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer's access to and use of the Service.
1.1 Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, (b) integrate the Services into any Application that has material value independent of the Services, and (c) use any Software provided by Swift Mobility B.V. as part of the Services. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.
1.2 Facilities. All facilities used to provide Services will adhere to reasonable security standards. Data is solely stored in datacenters located in Europe, where industry standard systems and procedures are implemented to (i) ensure the security and confidentiality of Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of Services and Customer Data, and (iii) protect against unauthorized access to Services and Customer Data.
1.3 New Applications and Services. Swift Mobility B.V. may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the "Services" definition from time to time, the use of which may be contingent upon Customer's agreement to additional terms.
1.5 Accounts. Customer may require a token (if applicable) to use Services, and is responsible for the information it provides to create the Account, the security of the Token, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its Account or Token, Customer will notify Swift Mobility B.V. as promptly as possible. Swift Mobility B.V. has no obligation to provide Customer multiple Tokens or Accounts.
2.1 Free Quota. Certain Services are provided to Customer without charge up to a certain usage threshold, as applicable. When this Threshold has been reached, Swift Mobility B.V. will revoke the access of this user to its backend; the user will have to get a premium account to again use the services. It is explicitly not allowed to actively circumvent set security measures to receive the free usage threshold multiple times.
2.2 Invoicing of Premium accounts. At the end of the applicable Fee Accrual Period, Swift Mobility B.V sends an invoice to Customer for all charges accrued. If Customer elects to pay by invoice (and Swift Mobility B.V. agrees), all Fees are due as set forth in the invoice. Customer's obligation to pay all Fees is non-cancellable. Swift Mobility B.V. has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Swift Mobility B.V..
2.4 Invoice Disputes & Refunds. Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Swift Mobility B.V., Swift Mobility B.V. will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Swift Mobility B.V. will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of Swift Mobility B.V. and will only be in the form of credit for the Services. Nothing in this Agreement obligates Swift Mobility B.V. to extend credit to any party.
2.5 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Swift Mobility B.V. in collecting such delinquent amounts. If Customer is late on payment for the Services, Swift Mobility B.V. may Suspend the Services or terminate the Agreement for breach pursuant to Section 9.2.
3.1 Compliance. Customer is responsible for ensuring all Customer End Users comply with Customer's obligations under this Agreement.
3.2 Obligations. Although Swift Mobility B.V. puts a lot of effort in a tested and production ready Services, it cannot guarantee that all results are correct in all cases. Customer is responsible for ensuring that that the results obtained via Services satisfy all safety criteria before using them in practice.
3.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) sublicense, resell, or distribute any or all of the Services; (c) create multiple Accounts to simulate or act as a single account or otherwise access the Services in a manner intended to avoid incurring Fees or exceed usage limits or quotas.
3.4 Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs Customer's use of that third party component.
4.1 Licence Violations. If Swift Mobility B.V. becomes aware that Customer's or any Customer End User's use of the Services violates this license agreement or any other licenses from Swift Mobility B.V. agreed by Customer, Swift Mobility B.V. will give Customer notice of the violation by requesting that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Swift Mobility B.V.’s request, then Swift Mobility B.V. may Suspend all or part of Customer's use of the Services until the violation is corrected.
4.2 Other Suspension. Notwithstanding Section 4.1 (License Violations) Swift Mobility B.V. may immediately Suspend all or part of Customer's use of the Services if: (a) Swift Mobility B.V. believes Customer's or any Customer End User's use of the Services could adversely impact the Services, or other customers' or their end users' use of the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Swift Mobility B.V. believes it is required to Suspend immediately to comply with applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions). Swift Mobility B.V. will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, unless prohibited by applicable law, Swift Mobility B.V. will notify Customer of the basis for the Suspension as soon as is reasonably possible.
5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, Swift Mobility B.V. owns all Intellectual Property Rights in the Services and Software.
5.2 Use of Customer Data. Swift Mobility B.V. will not access or use Customer Data, except as necessary to provide the Services and TSS to Customer, and to test and improve Services. To test and improve Services, Swift Mobility B.V. may only use Customer Data after this data has been anonymized.
5.3 Customer Feedback. If Customer provides Swift Mobility B.V. Feedback about the Services, then Swift Mobility B.V. may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Swift Mobility B.V. all right, title, and interest in that Feedback.
5.4 Benchmarking. Customer may not publicly disclose directly or through a third party the results of any comparative or compatibility testing, benchmarking, or evaluation (each, a "Test") of the Services, unless the disclosure includes all information necessary for Swift Mobility B.V. or a third party to replicate the Test. If Customer conducts, or directs a third party to conduct, a Test of the Services and publicly discloses the results directly or through a third party, then Swift Mobility B.V. (or a Swift Mobility B.V. -directed third party) may conduct Tests of any publicly available products or services provided by Customer and publicly disclose the results of any such Test (which disclosure will include all information necessary for Customer or a third party to replicate the Test). To the extent this Section 5.4 conflicts with any other Customer product or service terms, this Section 5.4 will govern.
6.1 Free limited technical support services. Swift Mobility B.V. aspires to provide the best Services as possible. Therefore all Feedback and any technical issues with its Services are taken seriously by Swift Mobility B.V.. Each paying Customer has right to 5 hours per year of technical support services free of charge from Swift Mobility B.V. regarding installation, use of Services and technical issues. Swift Mobility B.V. aspires to get back to each issue within 48 hours.
6.2. Extended technical support services. If desired the technical support services of Section 6.1 can be extended. In this regard Subject to payment of applicable support Fees, Swift Mobility B.V. will provide technical support services (TSS) to Customer during the Term. A separate TSS guidelines agreement will be drafted and agreed upon by Swift Mobility B.V. and Customer.
7.1 Discontinuance of Services. Subject to Section 7.2, Swift Mobility B.V. may discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
7.2 Deprecation Policy. Swift Mobility B.V. will announce if it intends to discontinue or make backwards incompatible changes to the Services specified at the URL in the next sentence. Swift Mobility B.V. will use commercially reasonable efforts to continue to operate those Services versions and features identified at https://www.swiftmobility.eu/terms/deprecation without these changes for at least one year after that announcement, unless (as Swift Mobility B.V. determines in its reasonable good faith judgment):
8.1 Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
8.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users' use of the Services.
9.1 Agreement Term. The "Term" of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 9 of this Agreement.
9.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Swift Mobility B.V. may terminate any, all, or any portion of the Services, if Customer meets any of the conditions in Section 9.2(i), (ii), and/or (iii).
9.3 Termination for Inactivity. Swift Mobility B.V. reserves the right to terminate the provision of the Service(s) if for a period of 60 days (i) Customer hasn’t had any activity in these Services; and (ii) Customer has not incurred any Fees for such Services.
9.4 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. Swift Mobility B.V. may terminate this Agreement for its convenience at any time without liability to Customer.
9.5 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to Swift Mobility B.V. are due within 60 days upon receipt of the final invoice; and (iii) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
Customer is permitted to state publicly that it is a customer of the Services. If Customer wants to display Swift Mobility B.V. Brand Features in connection with its use of the Services, Customer must obtain written permission from Swift Mobility B.V.. Swift Mobility B.V. may include Customer's name or Brand Features in a list of Swift Mobility B.V. customers, online or in promotional materials. Swift Mobility B.V. may also verbally reference Customer as a customer of the Services. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party's right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.
Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWIFT MOBILITY B.V. AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. SWIFT MOBILITY B.V. AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. NEITHER SWIFT MOBILITY B.V. NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
13.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR SWIFT MOBILITY B.V.’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
13.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR SWIFT MOBILITY B.V.’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO SWIFT MOBILITY B.V. UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13.3 Exceptions to Limitations. These limitations of liability do not apply to violations of a party's Intellectual Property Rights by the other party, indemnification obligations, or Customer's payment obligations.
14.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify Swift Mobility B.V. and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any result of Services or Customer Brand Features; or (ii) Customer's, or Customer End Users', use of the Services in violation of this agreement.
14.2 By Swift Mobility B.V.. Swift Mobility B.V. will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Swift Mobility B.V. technology used to provide the Services or (b) any Swift Mobility B.V. Brand Feature infringes or misappropriates the third party's patent, copyright, trade secret, or trademark.
14.3 Exclusions. This Section 14 will not apply to the extent the underlying Allegation arises from:
14.4 Conditions. Sections 14.1 and 14.2 will apply only to the extent:
14.6 Sole Rights and Obligations. Without affecting either party's termination rights, this Section 14 states the parties' only rights and obligations under this Agreement for any third party's Intellectual Property Rights Allegations and Third-Party Legal Proceedings.
15.1 Notices. All notices send to Swift Mobility B.V. must be send to firstname.lastname@example.org. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
15.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
15.3 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
15.4 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
15.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
15.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
15.7 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
15.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
15.9 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
15.10 Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
15.11 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 8, 9.5, 13, 14, and 15.
15.12 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement are incorporated by reference into the Agreement. After the Effective Date, Swift Mobility B.V. may provide an updated URL in place of any URL in this Agreement.
15.13 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL. If Swift Mobility B.V. provides this Agreement in more than one language for the country of your billing address, and there is a discrepancy between the English text and the translated text, the English text will govern.