Services Agreement

Services Agreement

Updated March 28, 2022

This Services Agreement (“Agreement”) is between you, individually, or your company or legal entity, as applicable (“Customer”) and swXtch.io LLC (“Publisher”) from which Customer is procuring the Offering (defined below) and governs Customer’s access to and use of the Offering purchased through the Azure Marketplace and/or AppSource Marketplace (collectively, “Marketplace”).

This Agreement, together with any Order and applicable Documentation (each of which are defined below and are incorporated herein by reference) is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By (i) accessing or using the Offering or (ii) accepting via click-through or otherwise or manually or electronically signing the Order or this Agreement, Customer indicates its acceptance of this Agreement. If you are accepting this Agreement on behalf of a company or other legal entity, you represent and warrant to Publisher that you have the legal authority to bind such company or legal entity to this Agreement. If you do not have such authority or do not agree with this Agreement, Customer must not access or use the Offering. The "Effective Date" of this Agreement is the date of Customer’s acceptance of this Agreement. Capitalized terms have the meanings given under “Definitions” below or as otherwise defined in this Agreement.

 

I.License to the Offering

  1. License Grant. Upon Microsoft and Publisher’s acceptance of an Order, and subject to Customer’s compliance with this Agreement, the Order and Documentation and the payment of all applicable fees, Publisher grants Customer a non-sublicensable, nonexclusive and limited license to access and use (and to allow permitted End Users to access and use) the ordered Offering during the applicable subscription or billing period. This license is solely for Customer’s own use and business purposes and is nontransferable except as expressly permitted under this Agreement or as required by applicable law. 

  2. Reservation of Rights. Notwithstanding anything herein to the contrary, Publisher reserves all right, title, and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights, and all other intellectual property and proprietary rights) in and to the Offering, Documentation and its associated technology; Customer acknowledges and agrees that Offering, Documentation and all associated technology, and patent, copyright, trademark and all other intellectual property and proprietary rights in, to and associated with the foregoing, are the sole and exclusive property of Publisher. Publisher reserves all rights not expressly granted in this Agreement, the applicable Order or Documentation. The Offering and Documentation are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use the Offering on a device or virtual machine do not give Customer any right to implement Publisher’s patents or other intellectual property in the device or virtual machine itself or in any other software, devices, or virtual machines.  Customer shall keep the Offering and Documentation free and clear of all liens, encumbrances, and/or security interests.

  3. Duration of License. Any license granted on a subscription basis expires at the end of the applicable subscription period set forth in the Order. Any license granted on a metered basis will be billed periodically based on Customer’s usage as set forth in the Order and such license continues as long as Customer continues to timely pay for its usage of the Offering. Notwithstanding anything to the contrary in this Agreement, all licenses are subject to the termination rights set forth herein, and Customer shall not receive a perpetual license to the Offering. Customer acknowledges and agrees that the Offering may be disabled after the expiration or termination of the applicable subscription or billing period.

  4. Evaluation Offering License. Publisher may grant Customer a license to install, access, and use the Offering during the limited period set forth on the applicable Order for demonstration, testing, or evaluation purposes (an “Evaluation Offering”), which shall automatically convert into the subscription or metered basis type indicated on such Order unless Customer cancels such Order on the Marketplace or gives prior written notice to Publisher at least one (1) business day before the end of the evaluation period of its intent to terminate the Order. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, (1) PUBLISHER HAS NO RESPONSIBILITY OR LIABILITY ARISING OUT OF OR RELATED TO ANY EVALUATION OFFERING AND (2) PUBLISHER PROVIDES THE EVALUATION OFFERING “AS IS” AND WITHOUT WARRANTY. ANY CUSTOMER DATA UPLOADED IN AN EVALUATION OFFERING WILL BE PERMANENTLY LOST ONCE THE EVALUATION PERIOD ENDS IF CUSTOMER CANCELS THE ORDER APPLICABLE TO THE SERVICES COVERED BY THE EVALUATION OFFERING IN ACCORDANCE WITH THIS SUBSECTION (D). The terms of this subsection (d) supersede any conflicting terms and conditions in this Agreement, the applicable Order or Documentation with respect to any Evaluation Offering. Publisher may suspend or terminate the license granted in this subsection (d) at any time and for any reason without notice. Customer acknowledges and agrees that the Evaluation Offering may be disabled after the expiration or termination of the evaluation period.

  5. End Users. Customer will control access to and use of the Offering by any End Users and is responsible for any access to or use of the Offering that does not comply with this Agreement, the applicable Order or Documentation.

  6. US Government End-Users. If any End User or the Customer is a U.S. Government agency, Customer hereby acknowledges and agrees that the Offering being accessed or used, as well as any software, device or virtual machine that is accessed or used by any End User or the Customer in connection with the Offering, constitutes “Commercial Computer Software” as defined in section 2.101 of the Federal Acquisition Regulation (“FAR”), 48 CFR 2.101 and DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, the Offering and Documentation are  "commercial items," "commercial computer software" and/or "commercial computer software documentation."  Consistent with DFAR section 227.7202 and FAR section 12.212, any access, use, modification, reproduction, release, performance, display, disclosure, or distribution thereof by or for the U.S. government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.

  7. Affiliates. Customer may permit access to or use of the Offering by its Affiliates, subject to subsection (h)(11) below, upon prior written notice to Publisher. If it does, the license granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement and the applicable Order and Documentation against Publisher. Customer will remain responsible for all obligations under this Agreement, the applicable Order and Documentation and for its Affiliates’ and each of their respective End Users’ and Representatives’ compliance with this Agreement, the applicable Order and Documentation as if they were party hereto.

  8. Restrictions. Customer must not and is not licensed to (and shall not allow any End Users to) , directly or indirectly:

    1. copy, modify, reverse engineer, decompile, create derivative works from or disassemble the Offering or any portion thereof, or attempt to do so;

    2. install, access, or use any third-party software or technology in any way that would subject Publisher’s intellectual property or technology, including any portion of the Offering, to any other license terms;

    3. circumvent any technical limitations or restrictions in this Agreement, the Offering, applicable Order, or the Documentation, including any measures to implement usage limits, content or geographic limits, and to the maximum extent permitted by applicable law, Customer hereby consents to Publisher’s use of such technological limitations or restrictions, and Publisher is hereby permitted to use such restrictions and monitor compliance therewith;

    4. except where expressly permitted by this Agreement, any applicable Order, or the Documentation, separate and run parts of the Offering on more than one device or virtual machine;

    5. upgrade or downgrade parts of the Offering at different times;

    6. access or use the Offering for any unlawful purpose, including transmitting through or posting on the Offering any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous, or otherwise unlawful;

    7. transfer parts of the Offering separately;

    8. distribute, sublicense, rent, lease, or lend the Offering, in whole or in part, or access or use them to offer hosting services to a third party;

    9. access or use the Offering or any part thereof, outside of the authorized territory set forth in the applicable order or in a jurisdiction where Publisher is prohibited from granting a license under applicable U.S. laws;

    10. remove, overprint, or deface any notice of copyright, trademark, logo, legend or other notices of ownership from the Offering;

    11. use the Offering to create, collect, transmit, store, use or process any Customer Data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);

    12. market, offer to sell, and/or resell the Offering;

    13. access or use the Offering or any portion thereof for any purpose other than as permitted in this Agreement, the applicable Order, or the Documentation including without limitation, to infringe the intellectual property rights of others in any way; or

    14. access or use the Offering if Customer or any permitted Affiliate is a direct competitor of Publisher, without Publisher’s prior written consent.

  9. Feedback. Notwithstanding any other provision in this Agreement, if Customer or its Affiliates (or their respective End Users or Representatives) provides Feedback then by providing such Feedback such provider automatically grants to Publisher (without charge, payment of royalties or other consideration to Publisher) a non-exclusive, royalty-free, fully paid, perpetual, irrevocable, worldwide license in the Feedback , and Publisher and its affiliates are free to make, use, disclose, modify, distribute, reproduce, license, commercialize and otherwise freely exploit without restriction of any kind the Feedback as part of any of Publisher or its affiliates’ products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the provider as confidential.

II.Export Control and Economic Sanctions.

Customer acknowledges that the Offering is subject to U.S., foreign, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including the U.S. Export Administration Regulations and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control. Customer also specifically agrees not to, directly or indirectly, allow access to or use of the Offering in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for prohibited end-uses under U.S. law without authorization from the U.S. government.

III.Data Protection and Privacy.

Consent to Use of Data. Customer agrees that Publisher and its Representatives may collect and use technical data and related information, including but not limited to technical information about Customer’s or its End Users’ device, virtual machine, system and application software, peripherals, account, or other data related to Customer’s or its End Users’ access to or use of the Offering or any Support Services, which is gathered for securing, managing, measuring, and improving the Offering or Support Services, including without limitation, to facilitate system performance, software updates, product support, third party integrations with other systems, and other services to Customer (if any). Publisher and its Representatives may also use this information for purposes not specified in this provision, as long as it is in an aggregated, anonymized, or other form that does not personally identify Customer.

Data Protection and Data Privacy.  Publisher and its Representatives shall during the term of the Agreement comply with all applicable Data Protection Laws relevant to the Offering and Support Services in the country or countries where Personal Data or Customer Data is collected, used, held, or otherwise processed.  Before providing Personal Data or Customer Data to Publisher, Customer and/or its End Users (as applicable) will obtain all required consents from and provide all required privacy notices to third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws to enable the lawful processing of Personal Data by Publisher and its Affiliates, and their respective Representatives, as provided in this Agreement.

 

IV.Confidentiality.

  1. Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, applicable Order and Documentation, and Customer’s account authentication credentials provided on or after the Effective Date. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation under this Agreement by the receiving party or its Representatives; (2) the receiving party received lawfully from another source that does not have a confidentiality obligation to the disclosing party; (3) is independently developed without violation of this Agreement, any Order or Documentation; or (4) is Feedback, a comment or suggestion volunteered about the other party’s business, products, or services.

  2. Protection of Confidential Information. Each party will take commercially reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship herein. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives (applying such nondisclosure obligations of the receiving party to such Representative except with regards to the right to share with other third parties) and, in the event of discovery of any unauthorized use or disclosure or in violation of this Section IV, must promptly notify the other party. Neither party shall remove, overprint, or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from the other party.

  3. Disclosure Required by Law. A party and its Representatives may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order. Notwithstanding the foregoing, notice shall not be required if the receiving party or its Representatives are requested or required to disclose Confidential Information in the course of routine supervisory examinations or regulatory oversight by regulatory authorities with jurisdiction over the receiving party or its Representatives.

  4. Duration of Confidentiality Obligations. These obligations apply: (1) for Customer Data, until it is deleted by Publisher or falls into one of the exceptions listed in subsection (a) above; and (2) for all other Confidential Information for a period of three years after a party receives the Confidential Information. Notwithstanding any of the foregoing, Customer acknowledges and agrees that certain Confidential Information may be deemed by Publisher to be a “Trade Secret” as that term is defined under the laws of the State of New York, and Customer shall protect such Trade Secret(s) for as long as, and to the extent that, such Confidential Information remains a Trade Secret.

V.Support, SLAs and Innovations.

  1. Publisher may at its discretion provide certain technical support services to Customer for certain Customer inquiries related to the deployment of the Offering via the Marketplace in accordance with the terms then available at https://swXtch.io/support or as otherwise provided by Publisher to Customer. Microsoft has no obligation under this Agreement to provide technical support to Customer regarding the Offering, except as otherwise agreed between Customer and Microsoft. 

  2. Publisher may offer further availability and technical support services for the Offering (“Support Services”) as described in and in accordance with any service level agreements (“SLA”) between Publisher and Customer. Such SLA(s) will be made available by the Publisher at the applicable URL for such SLA, in the Order or as otherwise communicated to Customer. Payment for SLAs may be invoiced and charged separately from the Order, or charged as part of the Offering if so indicated in the Order. 

  3. Unless otherwise stated in an Order, Customer acknowledges and agrees that, to the fullest extent legally possible, all Innovations will owned solely and exclusively by the Publisher. To the extent ownership of any such Innovation does not immediately vest with the Publisher as a work made for hire or otherwise by operation of law, Customer hereby irrevocably transfers and assigns and agrees to irrevocably transfer and assign to the Publisher any rights, title and interests that Publisher may have or acquire in such Innovations, including all intellectual property in and thereto, and Customer hereby agrees that all such Innovations shall be the sole and exclusive property of the Publisher.

VI.Verifying Compliance and Open Source Software.

a.Audit Rights. Customer must keep records relating to the Offering it and its Affiliates install, access, use or distribute. At Publisher’s expense, Publisher may verify Customer’s and its Affiliates’ compliance with this Agreement, the applicable Order and Documentation, including under the GDPR, at any time upon reasonable notice. To do so, Publisher may engage an independent auditor (under customary nondisclosure obligations) or ask Customer to complete a self-audit process satisfactory to Publisher. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the Offering. If verification or self-audit reveals any unlicensed or unpermitted use, Customer must, within thirty (30) days, order sufficient licenses to cover the period of its unlicensed or unpermitted use. Without limiting Publisher’s other remedies, if unlicensed or unpermitted use is 5% or more of Customer’s total use of all the Offering, Customer must reimburse Publisher for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed or unpermitted use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.

b.Open Source Software. Notwithstanding the Sections 1a and 1b, Customer acknowledges that certain components of the Offering that are delivered to Customer (“Open Source Components”) may be covered by open source software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses. Customer acknowledges receipt of license notices for the Open Source Components, at https://www.swxtch.io/legal. To the extent required by the licenses covering third party Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement.  To the extent the terms of the licenses applicable to third party Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to third party Open Source Components require Publisher to make an offer to provide source code or related information in connection with the Open Source Components, such offer is hereby made, and the applicable source code is available at https://www.swxtch.io/legal.

VII.Representations, Warranties, and Covenants.

a. Publisher represents and warrants that as of the Effective Date to its knowledge:

  1. it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;

  2. its performance under this Agreement will not violate in any material respect any agreement or obligation between it and any third party;

  3. the Offering will substantially conform to the Documentation; and

  4. Publisher complies with applicable law related to its performance under this Agreement in all material respects.

Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE OFFERING IS PROVIDED AS IS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PUBLISHER DISCLAIMS ANY AND ALL OTHER WARRANTIES (EXPRESS, IMPLIED OR STATUTORY, OR OTHERWISE) INCLUDING OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR COURSE OF PERFORMANCE.

b. Customer represents, warrants, and covenants that as of the Effective Date:

  1. it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;

  2. its performance under this Agreement will not violate in any material respect any agreement or obligation between it and any third party;

  3. where Customer is corporation, partnership or other business entity, (i) the person executing this Agreement has the requisite power and full and legal authority to enter into this Agreement for and on behalf of their respective corporation, partnership or other business entity, (ii) the person executing this Agreement has the requisite power and full and legal authority to bind such corporation, partnership or other business entity, and (iii) no further approval or consent of any other person is necessary in connection therewith;

  4. it has complied and will comply with all applicable government procurement laws and regulations;

  5. this Agreement satisfies all applicable procurement requirements;

  6. it will comply with all laws applicable to its access to or use of the Offering, including without limitations, Data Protection Laws applicable to the use of its Personal Data or Customer Data with the Offering; and

  7. it will not access or use the Offering for any prohibited uses as set forth in subsection I(h).

VIII.Defense of Third-party Claims.

a. By Customer.

Subject to the applicable limitations set forth in this Agreement, including Section IX, Customer shall defend, indemnify, and hold Publisher, its Affiliates and their respective owners and Representatives (collectively, the “Publisher Indemnified Parties”) harmless against any expenses, liabilities, costs, losses, or damages (including reasonable legal fees) incurred in connection with any claims, actions, demands, allegations, suits, or proceedings (each, a “Claim”) made or brought against any of the Publisher Indemnified Parties by a third party:

(1) alleging that the Customer Data or Customer’s or its Affiliates’ (or their respective End Users’ or Representatives’) access to or use of any Offering, infringes or misappropriates the intellectual property rights of, or has otherwise harmed, such third party, except where Customer is not in violation of this Agreement, the applicable Order, Documentation or other terms and such Claim relates solely to the rights licensed to Customer pursuant to this Agreement;

(2) based on an actual or threatened breach of any Data Protection Laws or an actual or threatened breach of this Agreement, the applicable Order, Documentation or other terms;

(3) as a result of Customer’s or its Affiliates’ access, use, or modification of the Offering;

(4) resulting from any negligent act or omission of Customer or its Affiliates (or their respective End Users or Representatives) (each a “Customer Indemnified Claim”). If Publisher elects to allow Customer to assume the defense and settlement of a Customer Indemnified Claim, Customer may not enter into any settlement of such matter without the express prior written consent of Publisher.

b. By Publisher.

Subject to the limitations set forth in this Agreement, including Section IX, Publisher shall defend, indemnify, and hold Customer harmless against any costs, losses, or damages (including reasonable legal fees) incurred in connection with Claims made or brought against Customer by a third party alleging that the access to or use of the Offering (excluding any included in the Offering distributed to Customer or used in conjunction with the Offering) or Documentation as contemplated hereunder infringes or misappropriates the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (1) promptly gives notice of the Infringement Claim to Publisher; (2) gives Publisher sole control of the defense and settlement of the Infringement Claim; provided that Publisher may not settle any Infringement Claim without Customer’s prior consent unless it unconditionally releases Customer of all liability and the monetary damages in connection with such settlement are paid by Publisher; and (3) provides to Publisher all reasonable assistance and information. THISSECTIONSTATES PUBLISHER’S SOLE LIABILITY WITH RESPECT TO, AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST PUBLISHER FOR,ANY CLAIM AGAINST CUSTOMER AND DOES NOT APPLY TO AN EVALUATION OFFERING FOR WHICH THERE IS NO INDEMNITY.

c. Exclusions. The indemnity in subsection (b) does not extend to (1) any Infringement Claim based upon or arising from Customer Data or infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Offering with other products, software, or services not provided or approved by Publisher, if such infringement would have been avoided but for such combination; (2) any Infringement Claim in respect to any version of the Offering other than the most current version; (3) any use, distribution, sublicensing, or exercise of any other right outside the scope of this Agreement, the applicable Order or Documentation; (4) any access, use, modification, combination, or development of the Offering that is not performed or authorized in writing by Publisher, including in the use of any API;  (5) Customer’s breach of this Agreement, the applicable Order or Documentation and (6) any liability of Publisher for breach of a SLA or other provision of Support Services.

d. Other Remedies.  If (1) Publisher becomes aware of an actual or potential Infringement Claim, or (2) Customer provides Publisher with written notice of an actual or potential Infringement Claim, Publisher may (or in the case of an injunction against Customer, shall), at Publisher’s sole option and determination: (i) procure for Customer the right to continue to use the Offering or (ii) replace or modify the Offering with a substantially equivalent or better Offering so that Customer’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by Publisher in its sole discretion, terminate the rights granted hereunder to the Customer to access and use the Offering and refund to Customer that portion of any prepaid frees that is applicable to the period following the termination of the Offering pursuant to this subsection (d), less any outstanding fees owed on such affected portion of the Offering.

IX.Limitation of liability.

With respect to the Offering, each party’s (and its Affiliates and their respective owners and Representatives) maximum, aggregate liability to the other arising out of or related to this Agreement, the SLA or the subject matter hereof for all claims, expenses, liabilities, costs, losses, and damages, including pursuant to Section VIII, is limited to direct damages finally awarded by a court of competent jurisdiction, subject to the following:

  1. Subscription and Metered Offering. If the Offering was ordered on a subscription basis, Publisher’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering during the twelve (12) months immediately preceding the incident giving rise to the liability. If the Offering was ordered on a metered basis, Publisher’s maximum liability to Customer for any incident giving rise to a claim will not exceed the lesser of one hundred and fifty thousand U.S. dollars (U.S.$150,000) and the amounts paid by Customer in the twelve (12) months immediately preceding the incident giving rise the liability.

  2. Free Offering and Distributable Code. If the Offering was provided free of charge, Publisher shall have no liability to Customer for any incident giving rise to a liability.

  3. Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages (including, without limitation, damages for loss of use, loss of business, loss of data, loss of savings, loss of profits, or interruption of business, or other similar pecuniary loss), however caused or on any theory of liability. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such expenses, liabilities, costs, losses, or damages or knew or ought to have known of such expenses, liabilities, costs, losses, or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Publisher shall also apply to its Affiliates and their respective owners and Representatives as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.

  4. Exceptions. No limitation or exclusion set forth in this Agreement will apply to any liability arising out of: (1) Customer’s alleged or actual violation of Publisher’s intellectual property rights, (2) Customer’s gross negligence or willful misconduct, (3) Customer’s violation of Section IV, or (3) any claims by Publisher for nonpayment.

X.Pricing and Payment.

Customer’s pricing and payment terms for a given Offering are set forth and governed by the applicable Order. If a price change is made to the Offering for which Customer has an active subscription or to Customer’s applicable metered rate, Publisher shall provide Customer with thirty (30) days’ notice of such change. Upon expiration of such 30-day notice period, to continue using the Offering, Customer shall be required to enter into a new Order, which shall reflect the new price.Purchaser shall have no liability for any claims, costs, losses or damages, monetary or otherwise, in connection with Customer’s failure to timely enter into such new Order.

XI.Term and Termination.

  1. Term. This Agreement is effective on the Effective Date and shall continue until terminated by a party in accordance with this Agreement. The term for each Order will be set forth therein.

  2. Termination without Cause. Unless otherwise set forth in an Order, Publisher may terminate this Agreement or any Order upon thirty (30) days’ prior notice to Customer or sooner if required by applicable law or Microsoft’s termination of Publisher’s right to provide the Offering on the Marketplace.  Unless otherwise set forth in an Order, Customer may terminate this Agreement (and all applicable Orders) upon thirty (30) days’ prior written notice to Publisher for Orders in connection with any metered Offering.  Customer may not terminate Orders for any Offering with a subscription term prior to the end of such term.  Publisher will provide refunds or credits for any unused portion of a partial subscription or billing periods if the Agreement or an Order is terminated without cause by Publisher.  Publisher will not provide refunds or credits for any partial subscription or billing periods if the Agreement or an Order is terminated without cause by Customer.

  3. Termination for Cause. Without limiting other remedies it may have, and subject to subsection (d) below, either party may terminate this Agreement or any Order immediately on written notice to the other party if (1) such other party materially breaches the Agreement, an Order (other than a breach of the SLA by Publisher) or the Documentation, and fails to cure such breach (if curable) within thirty (30) days after receipt of notice of such breach; or (2) such other party becomes Insolvent. Upon such termination, the following will apply:

  1. All Orders and licenses granted under this Agreement will terminate immediately.

  2. All amounts due under any unpaid invoices or Orders will become due and payable immediately. For any metered Offering billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date. For Orders placed for Offerings with a fixed subscription period, Customer must immediately pay the fees due for the entire subscription period.

  1. Exceptions. Notwithstanding subsection (c) above, if Customer violates applicable law or third-party rights, or breaches its confidentiality obligations contained in this Agreement or otherwise exceeds its rights to access or use the Offering, there will be no cure period, and Publisher may immediately terminate or suspend the Agreement and/or any Order. Publisher shall not be obligated to provide refunds or credits for any partial subscription or billing periods if the Agreement or an Order is terminated pursuant to this subsection (d). Publisher shall not be liable for any damages resulting from termination in accordance with this Section XI, including without limitation, the unavailable of Customer or its End User’s Customer Data or Personal Data.

  2. Suspension. Publisher may, at its election, suspend access to or use of the Offering or the Support Services without terminating this Agreement or the applicable Orders during any period of actual or alleged material breach by Customer. Publisher will endeavor to give Customer commercially reasonable notice before suspending the Offering or Support Services, except in instances where Publisher, in its sole discretion, determines that usage of the Offering or Support Services could violate applicable laws or third-party rights, Publisher may suspend usage of the Offering or Support Services without notice.

  3. Force Majeure. Publisher will not be liable for any failure in performance resulting from acts, omissions or events beyond its reasonable control, including an act of God, accident, riot, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, failure, act or omission of Microsoft or internet service provider, denial of service attacks, virus or hacking attacks, natural catastrophe, governmental act or omission, change in laws or regulation, national strike, fire, explosion, or generalized lack of availability of raw materials or energy.

  4. Survival. The terms of this Agreement, including those of the applicable Order and Documentation, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations, confidentiality obligations, and related procedures.

XII.Miscellaneous.

Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply: (1) Order;(2) this Agreement; (3) SLA; and (4) Documentation.

  1. Independent Contractors. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties.

  2. Amendments. Unless otherwise agreed in a writing signed by both parties, Publisher will not materially and adversely change the terms of this Agreement or applicable Order or Documentation during the term of this Agreement, except that Publisher may make changes, effective immediately, to this Agreement or applicable Order or Documentation (including any incorporated documents) from time to time if:

  1. required by law or third-party relationship, including with Microsoft (including if there is a change in applicable law or relationship);

  2. such changes apply to new functionality of the Offering;

  3. such changes are to the Open Source Components included in the Offering, as permitted in subsection VI(b); or

  4. if such changes are only to the SLA in compliance with the terms thereof.

  1. Assignment. Customer may not assign, transfer, or delegate any rights or obligations under this Agreement or in connection with an Order, Documentation or a license granted hereunder, including in connection with a change of control or by operation of law, without prior written consent from Publisher.   Upon a permitted assignment, transfer, or delegation, where applicable, Customer’s access to or use of the Offering may be disabled and Customer must uninstall and discontinue using the Offering and render any copies unusable. Publisher (and each of its permitted assignees, transferees or delegees) may freely assign, transfer, or delegate all rights and obligations under this Agreement or in connection with any Order, Documentation or a license granted hereunder, fully or partially without notice to Customer. Assignment by Customer will not relieve Customer of its obligations under this Agreement or any Order or Documentation. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.

  2. Severability. If any part of this Agreement, or any Order or Documentation is held to be unenforceable, invalid, or illegal by a court of competent jurisdiction, the rest of the Agreement or Order or Documentation will remain in full force and effect.

  3. Waiver.  Failure to enforce any provision of this Agreement or any Order or Documentation will not constitute a waiver and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any waiver must be in writing and signed by the waiving party and shall be effective only in the specific instance and for the purpose given.

  4. No Third-party Beneficiaries. This Agreement and any Order or Documentation does not create any third-party beneficiary rights except as expressly provided by its terms. Notwithstanding the foregoing, Publisher Indemnified Parties are intended third-party beneficiaries of this Agreement.

  5. Notices. Notices will be treated as delivered on (i) the date received if personally delivered, (ii) the first business day after the date of email transmission, or (iii) the date on the courier or fax confirmation of delivery. Notices to Publisher must be in writing and sent to the via email and physical mail to address stated in the Order and a copy (which shall not constitute notice) must be emailed to: legal@swxtch.io. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form, including its website.

XIII.Applicable Law

This Agreement and all Orders and Documentation will be governed by the laws of the State of New York, without regard to conflicts-of-law principles, and each party hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts of the State of New York located in New York County to settle all disputes or claims arising out of or in connection with this Agreement or any Order or Documentation.

  1. Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement or any Order or Documentation into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of this Agreement or any Order or Documentation unenforceable, the Agreement, Order or Documentation will be deemed modified to the minimum extent necessary to make it enforceable, and the rest of the Agreement, Order or Documentation will be fully enforced to effect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Agreement and any Order or Documentation will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise:

  1. all internal references are to this Agreement and its parties;

  2. all monetary amounts are expressed and, if applicable, payable, in U.S. dollars;

  3. URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;

  4. a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;

  5. “written”  or “in  writing”  means  a paper  document  only,  except  where  email  is expressly authorized;

  6. “days” means calendar days;

  7. “may” means that the applicable party has a right, but not a concomitant duty,

  8. “partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership;

  9. “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured;

  10. “notify” means to give notice under subsection (i) above; and

  11. a writing is “signed” when it has been hand-signed (i.e., with a pen), acknowledged through electronic click-through or similar method, or signed via an electronic signature service by a duly authorized representative of the signing party.

XIII.Definitions.

  1. “Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.

  2. “Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act.

  3. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to

  4. direct the management and policies of an entity.

  5. “Customer Data” means all data, including all text, sound, software, image, or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through access to or use of the Offering. Customer Data does not include Support Data.

  6. “Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from the Offering) through an engagement with Publisher to obtain technical support for the Offering covered under this Agreement.

  7. “Data Protection Law” means any law applicable to Publisher or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.

  8. “Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Publisher makes available for, or that result from the access to or use of, the Offering.

  9. “End User” means any person or entity (including permitted Affiliates) Customer permits to access or use the Offering or access Customer Data.

  10. “Feedback” means ideas, suggestions, recommendations, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. F

  11. “Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.

  12. “Microsoft” means Microsoft Corporation.

  13. “Offering” means all services, websites (including hosting), solutions, platforms, deliverables, and products identified in an Order and that Publisher makes available under or in relation to (1) this Agreement, (2) the applicable Order or Documentation, or (3) as a result of any SLA or professional services provided to Customer, including any developments, derivative works, new versions, copies, software, equipment, technology, equipment, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Offering and subject to the provisions of this Agreement (collectively clause (iii), “Innovations”).  The Offering availability may (i) vary by region and (ii) be updated from time to time by Publisher in its sole discretion. 

  14. “Order” means an ordering document, including any and all relevant terms incorporated by reference or related to pricing, term, SLA, or otherwise, used to transact the Offering via the Marketplace.

  15. “Personal Data” means any information relating to an identified or identifiable natural person.

  16. “Representatives” means a party’s employees, officers, directors, Affiliates, contractors, advisors, Subcontractors and consultants.

  17. “Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.

  18. “Subcontractor” means any third party: (1) to whom Publisher delegates its obligations under this Agreement, any Order or Documentation including a Publisher Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Publisher or a Publisher Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement or any Order or Documentation) or other Customer Confidential Information, and as updated from time to time by Publisher.

  19. “use” means to copy, download, install, run, display, use or otherwise interact with.