The Terms and Conditions (“Terms”) set forth herein constitute the full and complete agreement between you and Hosting Enterprises, Inc. d/b/a Swizznet (“Swizznet”, “we” “our” or “us”). By visiting or using the Swizznet website (“Website”), online services, or other software developed by Swizznet, or any other products or services of Swizznet (collectively, the “Services”) you agree to be bound by these Terms as well as our Privacy Policy, the terms of which are incorporated with these Terms. Swizznet® is a registered trademark of Hosting Enterprises, Inc.
Access to this Website and the User is granted only to Authorized Users. “Authorized Users” means (i) you, (ii) if you access this Website and the Services on behalf of an entity, you shall bind such entity and all of its employees, contractors, accounting professionals, representatives or agents whom you have authorized and (iii) if you resell the Services to your customers or permit access any of the Services to your customers, your customers and their employees, representatives, and agents. Each Authorized User’s use of the Website and Services shall be subject to and governed by the Terms. You and your Authorized Users are jointly responsible for your use of this Website and the Services, and your compliance with the Terms.
References in these Terms to “you” and “your” shall mean you, the entity you represent and any Authorized Users you may have authorized.
YOU MAY NOT ACCESS THE WEBSITE OR THE SWIZZNET PROGRAM IF YOU ARE OUR DIRECT COMPETITOR OR ANY AFFILIATES THEREOF, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
1. Website and Services.
1.1 Services and Site Implementation. Subject to the terms and conditions of these Terms, Swizznet shall provide the Services to you. You may contact us at sales@swizznet.com or complete our sign up form to create an account (“Account”). The Services shall be provided substantially as specified in the Swizznet Marketplace (marketplace.swizznet.com) or within the Private Cloud Services quote, including the payment and pricing terms (the “Price Sheet”).
1.2 Services Provided. The Services are available to you and your Authorized Users and accessible with your equipment when it is within the operating parameters of our network and when connectivity is available through established telecommunication providers. Swizznet will utilize commercially reasonable efforts to make the Services available to you during the Services Term. Notwithstanding, the Services may be subject to interruptions as a result of certain events including the interruption of telecommunication services. Swizznet is not responsible for any interruption to the Services.
1.3 Non-Exclusive Services. You understand that Swizznet will provide the Services on a non- exclusive basis, even if the Services have been customized for your use, and that we have customized and provided, and will continue to customize and provide, its software and technology to other parties for use in connection with a variety of applications, including accounting applications. Notwithstanding the foregoing, Swizznet will not reveal any of your data, or use any of your trademarks or tradenames, in providing its Services to third parties, or as part of its advertising campaigns unless specifically authorized by you in writing.
1.4 Ownership. You acknowledge that Swizznet owns all right, title and interest in and to the Website and Services. If Swizznet has made any customizations for you with respect to the Services, you acknowledge that the customizations and any source code, scripts, graphics and other resources used by Swizznet in customizing the Services remain the sole title and ownership of Swizznet and they are being provided to you during the Services Terms and any Renewal Services Term pursuant to these Terms.
2. Administrator Access; Account Management.
2.1 If you use our dedicated virtual machine environment, you will designate a user to act as an “Administrator” and Swizznet will provide the Administrator with a special account with administrative access over the virtual machine (“Admin Account”). Use of the Admin Account is subject to the following rules:
2.1.1 The Admin Account is provided solely for the Administration of the virtual machine environment, and its use must be limited to network and server administrative tasks such as the installation and updates of software and the administration of users. The Admin Account is not designed to be and shall not be used for day to day access to the Services. Use of the Admin Account for day to day use results in security risks to the Services and is a violation of these Terms. Use and access to a virtual machine for non-administrative tasks are limited to non-administrator accounts.
2.1.2 In the event an Admin Account is used for day to day use, Swizznet will provide only one warning to you. Repeated use of the Admin Account for day to day use will result in the disabling of the Admin Account. In the event your Admin Account is disabled, Swizznet may discontinue your use of the Services, may charge you for the future administration of your virtual machine at its then-current rates or charge you for an additional monthly user. You are solely responsible for your use of Admin Account including, but not limited to any damages to your systems, any misconfiguration of the Admin Account, any unauthorized use of the Admin Account and any loss of data arising from the use of the Admin Account.
2.1.3 Upon installation of any software using the Admin Account, the Administrator must notify Swizznet of the software installed for each Authorized User in order to allow Swizznet to comply with its Service Provider License Agreement obligations to third parties. Failure to do so is a violation of these Terms. Notification can be given either through the CloudWorkspaceTM management console or via email to sales@swizznet.com. Notifications sent via email must receive confirmation from Swizznet to be valid. Customer agrees that the Swizznet confirmation email received must be provided as the sole evidence of notification in the event of a dispute. You agree to indemnify Swizznet in accordance with Section 15 below for any fees, penalties and other damage (including attorney’s fees) arising from your failure to notify Swizznet of the installation of software on any Authorized User’s virtual machine. At its option, Swizznet will charge you one hundred and ten percent (110%) of the total fees and/or penalties assessed by all applicable third parties.
3. Data and Data Security.
3.1 Privacy and Protection of Personal Information. See Swizznet’s Privacy Policy disclosures at www.swizznet.com relating to the collection and use of your information.
3.2 Internet Security.
3.2.1 Encryption. When you create or log into your Account, or when you enter into an application session, the information transmitted between our servers and your computer is encrypted and is protected with industry-standard encryption. However, even though Swizznet has taken reasonable precautions to prevent the unauthorized access and alterations of its website and of the Services, no system on the Internet is completely secure. Swizznet is not responsible for any unauthorized access to alteration of its website and the Services.
3.2.2 Servers and Processes. All servers used by Swizznet in providing the Services to you are located in a controlled and secure facility and we have and will continue to implement reasonable and appropriate measures designed to help secure your data against accidental or unlawful loss, access or disclosures.
3.3. Access Security.
3.3.1 Access Passwords and Keys. You are solely responsible for the security of the user names, passwords and other pass keys (“Authentication Information”) with which you access the Website and Services, including any Authentication Information you may pass on to any of your employees, officers, directors, agents, accounting professionals, representatives, agents or third parties. If any of your employees, officers, directors, agents, accounting professionals, representatives or agents should leave your employ or no longer be engaged by you, you are hereby advised to remove their access to the Services by going to http://support.swizznet.com and submitting a request to immediately disable such user and remove or replace them on your account. Your responsibility includes ensuring the secrecy and strength of your passwords. Swizznet shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your Customer Database has been accessed by unauthorized parties, it is your responsibility to notify Swizznet immediately to request the login information be reset so that appropriate action can be implemented. Swizznet will use commercially reasonable efforts to implement such requests as soon as reasonably practicable after receipt of notice. If you suspect any third party intrusion into your Account or into the Services, you may request assistance from Swizznet by sending an e-mail to techsupport@Swizznet.com or by going to http://support.swizznet.com and submitting a request.
3.3.2 Data Access; User Shadowing. You are solely responsible for the content of any and all data entered on and stored via the Services (e.g. any credit card or other payment information, any social security numbers or other personally identifiable information, trade secrets and other confidential information) and for any access you may grant to your Authorized Users, including the ability for certain Authorized Users to view in real-time the action of other Authorized Users on the Services (“Shadow”). You agree to only attempt to Shadow your client users. You grant Swizznet permission to Shadow Authorized Users.
3.4 Configurations. You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate industry-standard security and protection of your data and endpoints. You are required to apply all recommended patches for your local operating system to ensure your endpoint is secure before connecting to our system.
3.5 PCI Compliance. Swizznet can facilitate PCI Compliance, but you need to perform additional steps outside of Swizznet in order for your business to be compliant with the security standard. To meet these requirements and ensure the security of your data, we recommend not sharing your login information, activating Multi-Factor Authentication on your account and regularly reviewing the audit trail report in your database. You can find out more about the PCI Security Standard and your obligations for compliance at https://www.pcisecuritystandards.org/. You acknowledge that you are solely responsible for your PCI compliance.
3.6 Ownership and Access to Data. All data stored on the Services are owned by their respective owners regardless of the identity of the party who paid for the Services. However, Swizznet does not know and has no ability to confirm the ownership of data stored on the Services and will only provide Authorized Users with access to the Services, unless applicable law requires otherwise. If you use the Services on behalf of a third party or store any data of any third party on the Services, you agree to provide a copy of such data to its respective owner at its written request as soon as practicable after receipt of such request. Swizznet disclaims any liability due to your failure to provide such data to a third party.
3.7 QuickBooks Backup Files. All QuickBooks backup files (only .QBB file extension) on your Swizznet storage drive that are 30 days old or older will be automatically deleted from the system. All other data will remain untouched. If you would like to keep your .QBB files for long term storage on Swizznet you may purchase storage at $5 per 5 GB of data storage. To enroll in this program, please submit a support ticket and our support team can assist you with designating which .QBB files you do not want deleted. If you would like to move any QBB backups down to your local computer for long-term storage and need assistance, please submit a support ticket.
4. Resellers and Referral Partners. If you have entered into either an agreement with Swizznet as a referral partner or to resell our Services, you shall be subject to all of the requirements and obligations of such agreement in addition to these Terms.
5. Payments.
5.1 Service Fee You hereby authorize Swizznet to charge service fees on a recurring basis on the first day of each month via the credit or debit card (e.g. American Express, Visa, MasterCard, and Discover) or echeck based on the information you have provided to us, in accordance with the specific pricing and payment procedures set forth at www.swizznet.com, marketplace.swizznet.com or on the Price Sheet. All payments are processed via Intuit® Merchant Services or Authorize.net and made in United States Dollars. Services during the Services Term or Renewal Services Terms are charged monthly (the “Services Period”).
5.1.1 Pro-rated Service Fees. Service fees will be prorated when Authorized Users are granted access mid-month. Pro-rated charges will be itemized per Authorized User and charged to the card on file on the date the Authorized User is granted access to the Services.
5.1.2 Non-Prorated Fees. All QuickBooks®, PageManager, Swizz Sync and Microsoft software license rentals as well as the required Intuit hosting $5/user fee for QuickBooks users are not pro-rated and the full monthly rental price and fee will be charged for users or rentals added mid-month.
5.2 Rate Changes. Swizznet reserves the right to change the rate charged for any fee under these Terms upon thirty (30) days’ prior notice.
5.3 Taxes. You shall be responsible for all sales and excise taxes and other similar taxes imposed by any federal, state or local governmental entity on the transactions contemplated by these Terms.
5.4 Reseller. If you subscribe to the Services via a reseller, these Terms shall be applicable regardless of whether any other terms, charges and fees are imposed by the reseller.
5.5 Account Suspension. If your Account is five (5) days past due, it shall be automatically suspended. Such Accounts are subject to a $50.00 reactivation fee which you must pay prior to reactivation of the Account. In addition, reactivation of a suspended account can take up to several business days and you must supply all identification documents and answer such questions as Swizznet may require to confirm your identity.
5.6 Collections. All past due and unpaid balances are subject to collection through collection agencies. In the event of such collection action, you are liable for costs of collection including but not limited to attorney’s fees, court costs, and collection agency fees. Once an account has been submitted to a collection agency for collection, such account shall additionally be subject to a $100.00 debt collection fee which you shall pay prior to reactivation of the account. Past due balances shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less, from the date the payment was due.
5.7 Refunds. Unless otherwise provided by law or in connection with any particular offer, all charges and fees charged by Swizznet are non-refundable.
6. Use of the Services.
6.1 Right to Use. Subject to these Terms, Swizznet hereby grants you, and any of your Authorized Users, the right to access and use the Services. You agree to and your Authorize Users agree to use the Services in full compliance with these Terms, including the provisions set forth in this Section 6.
6.2 No Monitoring. Swizznet does not monitor the data you may store using the Services nor do we intend to implement any programs or tools to monitor such data. However, if we discover any violations of these Terms, Swizznet reserves the right to discontinue your Account and your access to the Services.
6.3 Intended Use. For OuckBooks® multi-tenant users, the Services are created to facilitate the creation, transmission and corroboration of financial and tax accounting services by and among you, your bookkeeper and your accountant. The Services are not intended for general storage, data backup, or other general cloud services and should not be used as such. All .QBB files that are older than 30 days will be automatically deleted from the system unless you contact support to opt-in for paying to store these files.
6.4 Prohibited Use. In accessing the Website, creating an Account or using the Services, you agree not to, and you represent and warrant that you and your Authorized Users will not:
6.4.1 violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
6.4.2 take any action which encourages or consists of any threat of harm of any kind to any person or property;
6.4.3 make or attempt any unauthorized access to the Services or any other data or disclose any such information without authorization;
6.4.4 attempt to store install any executable software on any Swizznet hosting system without prior written authorization from us, including, but not limited to .exe, .bat, .com and .vbs files;
6.4.5 transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be “spamming” and carry out any “denial of service” attacks on any other website or internet service;
6.4.6 infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party;
6.4.7 collect, attempt to collect, publicize, or otherwise disclose personally identifiable information of any person or entity without their express consent (which may be through the person or entity’s registration and/or subscription to your services, in which case you must provide a privacy policy which discloses any and all uses of information that you collect) or as otherwise required by law, and you shall maintain records of any such consent throughout the terms of these Terms and for three years thereafter;
6.4.8 undertake any action which is harmful or potentially harmful to Swizznet, www.swizznet.com, the Services or any of our underlying infrastructure;
6.4.9 allow two or more users to share a single account and set of login credentials, or sell, transfer or sublicense any login credentials to any other entity or person except as specifically allowed under these Terms or otherwise requested and obtained prior written consent to do so by Swizznet;
6.4.10 take any other action to circumvent or bypass any service fees imposed by Swizznet;
6.4.11 you will not collect, attempt to collect, publicize, or otherwise disclose personally identifiable information of any person or entity without their express consent, including any access to the Services through any third party websites or portals unless such access is wholly compliant with these Terms and you provide a privacy policy which discloses any and all uses of information that you collect or as otherwise required by law. You shall maintain records of any such consent throughout the term of these Terms and for three (3) years thereafter.
6.4.12 you will not attempt to reverse engineer, decompile or disassemble the Website or Services, or any of the other software you have been provided access to through the Website or Services.
7. Software Licenses.
7.1 Software Used as Part of the Services. All software that is made available for your use as part of the Services are copyrighted works of Swizznet, and its suppliers (e.g. Citrix, Intuit, Microsoft). Use of such software is governed by the license terms, if any, which accompanies or is included with such software. You will not be authorized to use any such software unless you first agree to such licenses. Any reproduction or redistribution of such Software not in accordance with their respective software licenses is expressly prohibited. You acknowledge that the terms of such licenses may be modified or updated from time-to-time, and you agree to abide the terms of such licenses as modified. Swizznet may provide you, but shall have no obligation to provide you with notice of any modifications or updates to the license terms. The failure of Swizznet to provide you with such notice shall not relieve you of the obligation to abide by the license terms as they may modified or updated from time-to-time. By your use or continued use of the Services, you are agreeing to the terms of the licenses as such licenses may be modified from time-to-time.
7.2 License Keys and Numbers. You may be required to enter your license keys or other license information before you may use software from Intuit and Microsoft as part of the Services. You grant Swizznet the right to share such information with the software license owner for authentication and other related purposes.
7.3 Microsoft Office and other Microsoft Software. To access MS Office in the standard hosting environment all users are required to rent the software licenses per the Microsoft SPLA or to purchase the required Office 365 licenses. To utilize Microsoft SQL Standard in your private cloud environment you are required to rent the software license(s) per the Microsoft SPLA. If you install Microsoft SQL Standard or higher license in your private cloud environment without our knowledge you will be liable for all back-licensing costs and associated fees that arise under audit and are assessed to Swizznet as a result of the installation. You disclaim, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Software Services. In addition, you grant Swizznet the right to disclose your information as required for reporting to Microsoft under the terms and conditions required by the Microsoft SPLA and QMTH programs.
7.4 Other Customer Installed Software. For customers with a dedicated or custom server environment, you represent and warrant that you have valid licenses and understand the software licensing requirements prior to installing the software on your server(s). Use of such software is governed by the license terms, if any, which accompanies or is included with such software. You will not be authorized to use any such software unless you first agree to such licenses. Any reproduction or redistribution of such Software not in accordance with their respective software licenses is expressly prohibited.
8. QuickBooks® and Intuit®.
8.1 QuickBooks® Software is copyrighted (©) by Intuit Inc. All rights reserved. QuickBooks® software is hosted by Swizznet under license from Intuit® Inc. Swizznet is not affiliated with or endorsed by Intuit® Inc. Swizznet is solely responsible for the provision of all services on this website. You authorize Swizznet to install QuickBooks® software updates at its discretion and understand that the installation of such software updates may result in your need to perform a data file update of your QuickBooks® company file(s).
8.2 You represent and warrant that you have valid licenses to use the versions of QuickBooks® or other Intuit® software Swizznet provides for your use through the Services. If you do not own such software licenses, you may lease or purchase the required licenses through Swizznet. You are solely responsible for any penalties, fines, assessments and/or damages attributable to your use of the QuickBooks® or other Intuit® software without the required licenses.
8.3 You grant Swizznet the right to share your QuickBooks® license information, including all license-related keys and numbers, payroll keys and numbers, number of users, as well as contact names and addresses, with Intuit for verification and tracking purposes.
8.4 You understand and agree that Intuit® is not a party to this Swizznet User Agreement.
8.5 Intuit® disclaims any liability to you for the provision of QuickBooks® hosting by Swizznet and you waive and release Intuit® from any such liability.
8.6 Any warranties by Intuit® for the provision of QuickBooks® hosting by Swizznet are disclaimed.
8.7 You understand and agree that Intuit® is responsible solely for Intuit’s® software and services and is not responsible for any other products or services offered by Swizznet or third parties.
8.8 You understand and agree that QuickBooks® software is subject to sunsetting policies from Intuit and upon receipt of notice by Intuit or Swizznet that a particular version of the QuickBooks® is being sunsetted that you shall be required to upgrade to the latest version of QuickBooks® or another non-sunsetted version of QuickBooks®.
8.9 You understand and agree that except for those licenses that you bring to Swizznet as a new customer, you must either lease QuickBooks® licenses through Swizznet, purchase QuickBooks® licenses through Swizznet, or obtain new QuickBooks® licenses through Intuit’s® National Accounts organization, an Intuit accountant sales partner program, or an authorized and currently-participating Intuit Solution Provider Program member rather than through any other means.
8.10 You understand and agree that all QuickBooks® licenses you lease through Swizznet are valid only while you are a Swizznet customer and that each such license may be disabled at any time after the user account to which they were assigned is no longer paid for through Swizznet.
8.11 You understand that if you discontinue use of the Swizznet services you must obtain solely and directly from Intuit any physical media copies of the QuickBooks® software to which you are entitled under your license(s).
9. Confidentiality of Data. The information and documents you store on the Website and Services contain sensitive information related to your finances and your business. All such information is deemed to be “Confidential Information.” Swizznet shall take reasonable precautions to hold all Confidential Information in strict confidence and shall not disclose, deliver, or otherwise make the same known or available to any third party. Such precautions will be at least as great as those implemented by Swizznet to protect its own confidential information. Swizznet shall make no use of any Confidential Information directly or indirectly, for its own benefit or that of any third party, except as expressly intended pursuant to these Terms, or in compliance with any court or administrative order from a governmental entity. In the event that we or anyone to whom we transmit the Confidential Information pursuant to these Terms is requested or becomes legally compelled to disclose any of the Confidential Information (whether by oral questions, interrogatories, requests for information or documents, subpoena, governmental investigation or demands or similar process or otherwise), we will provide the you with prompt notice so that you may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of these Terms. In the event that such protective order or other remedy is not obtained, you agree that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information that we are, in the opinion of our counsel or the counsel of our Representatives, legally required to disclose.
10. Termination and Suspension of Services.
10.1 Services Term. The Services Term is month-to-month except if a different Services Term is specified in the Swizznet Marketplace (marketplace.swizznet.com) or in the Services quote. For a Services Term that is month-to-month or less than one (1) year, the Agreement shall be automatically renewed for subsequent terms (each a “Renewal Term”) of one (1) month (each a “Renewal Term”) unless terminated by written Notice at least thirty (30) days prior to the end of the initial Services Term or any subsequent Renewal Term. For an initial Services Term that is one (1) year or greater, this Agreement shall be automatically renewed at the end of the initial Services Term or Renewal Term for a subsequent Renewal Term of one (1) year unless terminated by written Notice at least thirty (30) days prior to end of the initial Services Term or any subsequent Renewal Term.
10.2 Termination by Swizznet. Your access and use of the Services may be terminated by Swizznet upon (i) the failure to timely make payments for the Services and the payment is more than five (5)days overdue; (ii) in case of any material breach of any of the other provisions of these Terms that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party; (iii) insolvency; or (iv) ceases to do business in the normal course; becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) days, or makes an assignment for the benefit of creditors.
10.3 Termination by Reseller. If your use of the Services is paid for by or through a third party, you understand and agree that the third party has the right to have your account suspended or terminated at any time for any or no reason and that their failure to pay for Services that you use could result in termination or suspension of your access to the Services and/or your data.
10.4 Termination by You. These Terms may be terminated by you upon thirty (30) days written prior notice to Swizznet. If you terminate the Services for your convenience and Services Term is not month-to-month, Swizznet reserves the right to assess early termination fees equal to the average monthly invoice during the Services Term or Renewal Services Term multiplied by the remaining months left on the Services Term.
10.5 Effect of Termination. In the event of termination, you take full responsibility for retrieving your data from the Swizznet system during the period provided you for retrieval and within one month after the date of termination. However, Swizznet will provide a reasonable amount of support to assist you in copying your Data from the Services. Your data will be deleted from the Services one month after the date of termination.
11. Uptime Service Levels.
11.1 Uptime. Subject to the terms and conditions of these Terms, Swizznet will use commercially reasonable efforts to make the Services Available at least (99.95%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by you and your Authorized Users over the Internet and operating in material accordance with the specifications.
11.2 Exceptions. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un- Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impair the ability of you or your Authorized Users to access or use the Services that is due, in whole or in part, to any: (i) Scheduled Downtime, (ii) Client-Side Occurrences, (iii) Startup Exemption, (iv) failure, interruption, outage or other problems with any software, hardware, system, network, facility or other matter or services not supplied by Swizznet, (v) the disabling, suspension or termination of the Services pursuant to Section 9, (vi) outages arising from or related to a Force Majeure (as defined in section 16 below) event.
11.3 Scheduled Downtime. You acknowledge that the Services depend primarily on software, infrastructure and services provided by third parties, including but not limited to Citrix, Intuit and Microsoft, which may from time-to-time issue patches, service packs, software updates, or changes in hardware requirements. In order to ensure the integrity and full functionality of the Services, Swizznet may schedule certain times during which the Services will become un-Available (“Scheduled Downtime”). Swizznet shall endeavor to reserve such Scheduled Downtimes during 10:00 PM to 2:00 AM (Pacific Time) and shall provide you and your Authorized Users with at least twenty-four (24) hours of prior notice via e-mail and on Swizznet’s Support Portal. In the event Swizznet anticipates the Scheduled Downtime will extend beyond this four hour window, Swizznet shall contact and work with you and your Authorized Users to ensure offline access to your files during such Scheduled Downtime and to assist you and your Authorized Users to upload and reintegrate these files to the Services when the Services do become Available.
11.4 Client-Side Occurrences. Swizznet will not be responsible for any delays or deficiencies in the Services to the extent that such delays or deficiencies are caused by your or your Authorized User’s action or omissions, or due to equipment or services that are not provided or controlled by Swizznet, including but not limited to any third-party software, hardware, infrastructure, system, network, facility, or services.
11.5 Startup Exception. The Availability Requirement is inapplicable for ten (10) days following you and your Authorized Users’ first access to the Services, it being understood that there may be unanticipated downtime or delays due to Swizznet’s initial startup activities and customization of the Services (the “Startup Exception”).
11.6 Force Majeure Notifications. Swizznet shall endeavor to proactively post notifications of force majeure-type service outages in the Support Portal as soon as such events are brought to Swizznet’s attention.
11.7 Service Level Failures and Remedies. In the event of a Service Level Failure, Swizznet shall issue a credit to you in the amount of a credit of ten percent (10%) of the then-monthly Services fee for each block of four (4) hours (pro-rated for blocks of time less than four (4) hours) in which Swizznet failed to meet the Availability Requirement, up to a maximum credit of one hundred percent (100%) in a calendar month (“Service Credit”), subject to the following:
11.7.1 Swizznet has no obligation to issue any Service Credit unless (i) you report the Service Failure to Swizznet immediately on becoming aware of it by submitting a Trouble Ticket through the Support Portal; and (ii) requests such Service Credit in writing within fourteen (14) days of the Service Level Failure; and
11.7.2 The credit issued may be offset against any fees you owe for the current Service Period.
The remedies contained in this Section 11.7 are in lieu of and are to the exclusion of any and all other remedies that might otherwise be available to you for Service Level Failures during any Service Period.
12. DISCLAIMER OF WARRANTIES. YOUR USE OF THIS WEBSITE AND SERVICES FROM SWIZZNET IS AT YOUR OWN RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. SWIZZNET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THE WEBSITE OR SERVICES OFFERED. WE PROVIDE THIS WEBSITE, SERVICES AND THIRD PARTY SOFTWARE OFFERED ON OR THROUGH THE SITE ON AN “AS IS, WITH ALL FAULTS” BASIS. SWIZZNET EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE ACCURACY, COMPLETENESS, IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY CONTENT OFFERED ON OR THROUGH THE SITE. THE FOREGOING EXCLUSION OF WARRANTIES DOES NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
13. LIMITATIONS OF LIABILITY. SWIZZNET, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, INSURERS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOSS OF DATA, LOST PROFITS OR LOSS OF OR DAMAGE TO PROPERTY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS WEBSITE OR THE SERVICES, ANY SOFTWARE PROVIDED AS PART OF THE SERVICES, ANY WEBSITES LINKED TO THIS WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH THE MAXIMUM LIABILITY OF SWIZZNET TO YOU UNDER THESE TERMS AND CONDITIONS SHALL NOT EXCEED (i) IF SERVICES TERM IS MONTH-TO-MONTH, THE AMOUNT PAID TO SWIZZNET DURING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM AROSE(ii) IF THE SERVICES TERM OR RENEWAL TERM IS NOT MONTH-TO-MONTH BUT LESS THAN ONE YEAR, THE AMOUNT PAID OR PAYABLE TO SWIZZNET DURING THAT PART OF THE SERVICES TERM OR RENEWAL TERM PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (III) IF THE SERVICES TERM OR RENEWAL SERVICES TERM IS EQUAL OR GREATER THAN ONE YEAR, THE AMOUNTS PAID OR PAYABLE FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM
14. LIMITATION OF REMEDIES. IN THE EVENT OF ANY PROBLEM WITH THE WEBSITE OR THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS OUTLINED IN SECTION 11. IN THE EVENT OF ANY PROBLEM WITH THE THIRD PARTY SOFTWARE THAT YOU HAVE USED ON OR THROUGH THE WEBSITE AND SERVICES, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OR CREATOR OF SUCH SOFTWARE, IN ACCORDANCE WITH SUCH MANUFACTURER’S OR CREATOR’S WARRANTY.
15. Indemnity.
15.1 Survival. This indemnification provision shall survive termination or discontinuation of your use of the Website and Services.
15.2 Indemnification by you. You (and your Authorized Users) shall jointly and severally indemnify, defend and hold Swizznet, its owners, affiliates and subsidiaries, and their respective officers, directors, shareholders, employees, contractors, representatives, and agents and their successors and assigns, harmless in respect of any and all claims, losses, damages, liabilities fees, penalties, fines and expenses, including, without limitation, settlement costs, and all legal, accounting, and any other expenses in connection therewith (collectively “Damages”) arising out o or related to (i) your or your Authorized Users negligent or willful acts or omissions in connection with or related to your or your Authorized Users’ use of the Services; (ii) your or your Authorize Users’ breach of any representation or warranty contained herein; (iii) a security intrusion caused directly or indirectly by you or your Authorized Users; (iv) any Prohibited Use as set forth in Section 6.4 above by your or your Authorized Users; (v) the breach of the Terms; (vi) your violation of any federal, state or local law or regulation including any privacy laws and data protection laws and/or (vii) your or your Authorized Users’ infringement of a third party’s patent, copyright, trademark or other intellectual property rights.
15.3 Notice and Defense of Claim. Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Party”) shall provide written notice to the other party (the “Indemnifying Party”) within thirty (30) days of becoming aware of the right to indemnification and, as expeditiously as possible thereafter, the facts constituting the basis for such claim. In connection with any claim giving rise to indemnity hereunder, resulting from or arising out of any claim or legal proceeding by a person who is not a party to these Terms, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such claim or legal proceeding with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such action, with its counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom, the Indemnified Party may, but shall not be obligated to, defend against such claim or litigation in such manner as it may deem appropriate including, but not limited to, settling such claim or litigation, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any Damages resulting therefrom.
16. Force Majeure. Either party to these Terms shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
17. Major Corporate Events. Swizznet may also terminate these Terms in the event that Swizznet or its owners engages in any merger, acquisition, reorganization, sale of all or substantially all of its assets, bankruptcy, insolvency or elects at its sole discretion to cease doing business in the United States and/or Canada for economic reasons or for any other reason whatsoever (“Major Corporate Event”). If you are taking advantage of any Swizznet offer for free or discounted services or any other services that were intended to go beyond the date of cessation, you may not recover any damages from Swizznet (or any of its affiliated entities) in the event that you incur costs and expenses related to the cessation of the Services, nor do you have, nor may you bring, any claim for repayment or reimbursement of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any Services.
18. Non-Solicitation. Except as may be limited by applicable law, while you are using any of the Services we provide and for a period of twelve (12) months after the expiration or termination of your use of such Services, you will not directly or indirectly employ or solicit to employ, the officers, employees, subcontractors or agents of Swizznet (“Personnel”). In the event you solicit any Personnel for employment in breach of this Section18, then in addition to any other remedies available in these Terms, or at law, you shall reimburse Swizznet an amount equal to the salary and commissions, if any, earned by such employee during the last twelve (12) months while such Personnel was employed by Swizznet. The parties acknowledge that such reimbursement is a genuine estimate of the lost revenue and the costs of recruiting and training of a replacement. This prohibition shall not apply to the solicitation or hiring of any Personnel who either apply on their own without solicitation by you or who respond to a publication of open positions not targeted specifically at the Personnel.
19. Miscellaneous.
19.1 Full Agreement. Except if you are a reseller of Swizznet Services or a referral partner of Swizznet, in which case you shall also be subject to a reseller agreement or referral agreement, these Terms the accepted Services quote at the Swizznet Marketplace (marketplace.swizzznet.com) and/or the Price Sheet, if any, constitute the full agreement between the parties and no promises or conditions other than those set forth herein are binding. These Terms may be modified from time-to-time by Swizznet by posting any revised Terms at swizznet.com and your use of the Services thereafter shall constitute your acceptance to the revised Terms. In the event of any conflict between the Terms, the Swizznet Marketplace (marketplace.swizznet.com), any Services quote or any Price Sheet, the Terms shall control.
19.2 Governing Law; Jurisdiction; Venue. These Terms shall be governed and interpreted by the laws of the state of Delaware. Any legal action related to arising under these Terms shall be brought only in the state and federal courts located in the state of Delaware and both you and us expressly agree to the jurisdiction and venue of these courts.
19.3 Attorneys’ Fees. If either party brings litigation to enforce these Terms, the prevailing party shall be entitled to costs and reasonable attorney’s fees.
19.4 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms shall remain in full force and effect.
19.5 Assignment. You may not assign your rights or delegate your obligations under these Terms without the Swizznet’s prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of these Terms. Swizznet may assign its rights and obligations to a third party by virtue of a merger, acquisition, reorganization, consolidation or sale of substantially all of its assets.
19.6 No Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right.
19.7 Attribution. The initial Swizznet portal page and all related pages shall conspicuously display a graphic provided by Swizznet that indicates that Swizznet’s technology is being used.
19.8 Notices. Any notice required for or permitted by these Terms, shall be in writing and shall be delivered to the addresses provided by you on or before the activation of the Services or as subsequently advised in writing to Swizznet. You agree that you will notify Swizznet of any changes to your contact information within fourteen (14) days of such change.
Any notice to Swizznet shall be deemed sufficient upon actual receipt. Notices to Swizznet shall be sent as follows:
January 2020
