Terms of Service
Last Modified: 17 January 2022This Software as a Service Agreement (this "Agreement") is a binding contract between you ("Customer,""you," or "your") and Swap Commerce Limited ("Provider," "we," or "us"). This Agreement governs your access to and use of the Software Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU SIGN THE QUOTE SENT VIA HUBSPOT OR BY ACCESSING OR USING THE SOFTWARE SERVICES (the "Effective Date"). BY SIGNING THE QUOTE OR BY ACCESSING OR USING THE SOFTWARE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SOFTWARE SERVICES.
(a) "Authorized User" means Customer and Customer's employees, consultants, contractors, and agents(i) who are authorized by Customer to access and use the Software Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to theSoftware Services has been purchased hereunder.
(b) "Software Services" means the services provided by Provider under this Agreement that are detailed on Provider's website available at www.swap-commerce.com and reflected in theCustomer's order.
(c) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Software Services.
(d) "Documentation" means Provider's user manuals, handbooks, and guides relating to the Software Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Software Services available at www.swapcommerce.com
(e) "Provider IP" means the Software Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the SoftwareServices, but does not include Customer Data.
(f) "Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Software Services.
Access and Use
2. Access and Use.
2(a) Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other/the terms and conditions of this Agreement, Provider hereby grants youa revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use theSoftware Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Provider shall provide you the necessary passwords and access credentials to allow you to access the Software Services.
(b) Documentation License. Subject to the terms and conditions contained in thisAgreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Software Services
(c) Downloadable Software. Use of the Software Services may require or include useof downloadable software. Provider grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as part of the Software Services. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 3(e)
(d) Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Software Services, any software component of the Software Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software Services, any software component of the Software Services, orDocumentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the SoftwareServices, in whole or in part; (iv) remove any proprietary notices from the Software Services or Documentation; or (v) use the Software Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement,Provider may monitor Customer's use of the Software Services and collect and compile data and information related to Customer's use of the Software Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software Services("Aggregated Statistics"). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the SoftwareServices. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law[; provided that such Aggregated Statistics do not identify Customer orCustomer's Confidential Information.
(f) Reservation of Rights. Provider reserves all rights not expressly granted toCustomer in this Agreement. Except for the limited rights and licenses expressly granted under3this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise,to Customer or any third party, any intellectual property rights or other right, title, or interest in orto the Provider IP.
(g) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Software Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any other Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider;(C) Customer or any other Authorized User is using the ProviderIP for fraudulent orillegal activities;(D) subject to applicable law, Customer has ceased to continue its business in the ordinary course ,made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any insolvency, reorganization, liquidation, dissolution, or similar proceeding; or (E)Provider's provision of the Software Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access theSoftware Services; or (iii) in accordance with Section 5 (any such suspension described in sub clause(i), (ii), or (iii), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Software Services as soon as reasonably possible after the event giving rise to the Software Services Suspension is cured.Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), orany other consequences that Customer or any other Authorized User may incur as a result of aService Suspension.
3. Customer Responsibilities.
(a) Acceptable Use. The Software Services may not be used for unlawful, fraudulent, offensive, or obscene activity, or for any other activity that may be notified by the Provider in writing. You will comply with all terms and conditions of this Agreement, all applicable laws, rules,and regulations, and all guidelines, standards, and requirements that may be notified by theProvider in writing.
(b) Account Use. You are responsible and liable for all uses of the Software Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make allAuthorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software Services and shall cause Authorized Users to comply with such provisions.
(c) Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide theSoftware Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and anyAuthorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(d) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Software Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(e) Third-Party Products. The Services may permit access to Third-Party Products orServices. For purposes of this Agreement, such Third-Party Products or Services are subject to their own terms and conditions presented to you for acceptance within the Software Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-PartyProducts or Services, then you should not install, access, or use such Third-Party Products or Services.
Service Levels and Support
4. Service Levels and Support.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Software Services available in accordance with the service levels available at www.swap-commerce.com ("Service Levels").
(b) Support. This Agreement does not entitle Customer to any support for theSoftware Services.
Fees and Payment
5. Fees and Payment. Customer shall pay Provider the fees as described on the Order Form appended to this agreement ("Fees") on or before the due date. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 3.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for 14 days or more, Provider may suspend, in accordance with Section 2(g), Customer's and all other Authorized Users' access to any portion or all of the Software Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income. Iv) Provider will pay monies collected in its payment gateway for labels purchased by the Customers clients on a weekly basis.
6. Confidential Information. From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Not withstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years there after; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Data Protection. In this Section 6, the following terms definitions shall apply
Applicable Data Protection Laws
:i) to the extent the UK GDPR applies, the law of the United Kingdom or of apart of the United Kingdom which relates to the protection of personal data; or
(ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Provider is subject, which relates to the protection of personal data. Customer Personal Data: any personal data that the Provider processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Purpose: the purposes for which the Customer Personal Data is processed, asset out in clause 6(h)(i).
UKGDPR: has the meaning given to it in the Data Protection Act 2018.
(b) For the purposes of this Section 6, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UKGDPR.
(c) Both parties will comply with all applicable requirements of Applicable DataProtection Laws. This Section 6 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
(d) The parties have determined that, for the purposes of Applicable Data ProtectionLaws:6
(i) the Provider shall act as processor in respect of the personal data and processing activities accessed via delivery of the Software Services
(e) Should the determination in Section 6
(d) change, then each party shall work together in good faith to make any changes which are necessary to this Section 6 or the related schedules.
(g) The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Provider Personal Data and Customer Personal Data to theProvider and the lawful collection of the same by the Provider for the duration and purposes of this agreement.
(h) The Provider shall, in relation to Customer Personal Data:
i) process that Customer Personal Data only on the documented instructions of the Customer, unless the Provider is required by Applicable Laws to otherwise process that Customer Personal Data. Where the Provider is relying on Applicable Data ProtectionLaws as the basis for processing Customer Processor Data, the Provider shall notify theCustomer of this before performing the processing required by the Applicable DataProtection Laws unless those Applicable Data Protection Laws prohibit the Provider from so notifying the Customer on important grounds of public interest. The Provider shall inform the Customer if, in the opinion of the Provider, the instructions of the Customer in fringe Applicable Data Protection Laws;
(ii) implement the technical and organizational measures set out in to protect against unauthorized or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which theCustomer has reviewed and confirms are appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(iii) ensure that any personnel engaged and authorized by the Provider to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(iv) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Provider), and at theCustomer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(v) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data; and
(vi) at the written direction of the Customer, delete or return CustomerPersonal Data and copies there of to the Customer on termination of the agreement unless the Provider is required by Applicable Data Protection Law to continue to process thatCustomer Personal Data.
(i) The Customer hereby provides its prior, general authorization for the Provider to:
i) appoint processors to process the Customer Personal Data, provided that the Provider:
A) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Provider in this Section 6;
(B) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Provider; and
(C) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Provider's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Provider for any losses, damages, costs (including legal fees) and expenses suffered by the Provider in accommodating the objection.
(ii) transfer Customer Personal Data outside of the UK as required for thePurpose, provided that the Provider shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Provider, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK InformationCommissioner from time to time (where the UK GDPR applies to the transfer).
(j) Either party may, at any time on not less than 30 days' notice, revise these terms by replacing it (in whole or part) with any applicable standard clauses approved by the EUCommission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply when replaced by attachment to this agreement, but only in respect of such matters which are within the scope of the Amended Terms.
(k) The Provider's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent),restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract insofar as it relates to the obligations8set out in this Section 6, or Applicable Data Protection Laws shall be limited to the total value of the Fees paid to the Provider by the Customer.
Intellectual Property Ownership
7. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right,title, and interest, including all intellectual property rights, in and to the Software Services and (b) you ownall right, title, and interest, including all intellectual property rights, in and to Customer Data If you or anyof your employees, contractors, or agents sends or transmits any communications or materials to us bymail, email, telephone, or otherwise, suggesting or recommending changes to the Software Services,including without limitation, new features or functionality relating thereto, or any comments, questions,suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligationor limitation between you and us governing such Feedback. All Feedback is and will be treated as nonconfidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, andagents to assign, all right, title, and interest in, and we are free to use, without any attribution orcompensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectualproperty rights contained in the Feedback, for any purpose whatsoever, although we are not required touse any Feedback.
Limited Warranty and Warranty Disclaimer
8. Limited Warranty and Warranty Disclaimer.
(a) Provider warrants that it provides Software Services using a commerciallyreasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDERSTRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRDPARTY SERVICES SUCH AS PROVIDED BY SHIPPING CARRIERS OR OUR WAREHOUSE PARTNERS.
(b) Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Software Services are in compliance with our written instructions.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES,WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE,OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including [reasonable] attorneys' fees ("Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Software Services, or any use of the Software Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider ,and allows Provider sole authority to control the defense and settlement of such ThirdParty Claim.
(ii) If such a Third-Party Claim is made or Provider reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Software Services, or component or part there of, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate thisAgreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9 (a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged ThirdParty Claims that the Software Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
(iii) This Section 9(a) will not apply to the extent that any such Third-PartyClaim arises from Customer Data or Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, atProvider's option, defend Provider and its officers, directors, employees, agents, affiliates,successors, and assigns from and against any and all Losses arising from or relating to any ThirdParty Claim (i) that the Customer Data, or any use of the Customer Data in accordance with thisAgreement, infringes or misappropriates such third party's intellectual property rights; or (ii) basedon Customer's or any Authorized User's negligence or willful misconduct or use of the SoftwareServices in a manner not authorized by this Agreement; provided that Customer may notsettle anyThird-Party Claim against Provider unless Provider consents to such settlement, and furtherprovided that Provider will have the right, at its option, to defend itself against any such Third-PartyClaim or to participate in the defense thereof by counsel of its own choice.
Limitations of Liability
10. Limitations of Liability.
(a) Nothing herein excludes the liability of the Provider for: (a)for death or personalinjury caused by the Provider's negligence; or (b)for fraud or fraudulent misrepresentation.(b) The Customer assumes sole responsibility for results obtained from the use of theServices and the Documentation by the Customer, and for conclusions drawn from such use. TheProvider shall have no liability for any damage caused by errors or omissions in any information,instructions or scripts provided to the Provider by the Customer in connection with the Services, orany actions taken by the Provider at the Customer's direction.(c) IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THISAGREEMENT WHETHER IN LAW OR EQUITY, INCLUDING BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL,INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b)INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, LOST SHIPMENTS,PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE,INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OFDATA OR SYSTEM SECURITY;10OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHERPROVIDER WAS ADVISEDOF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES ORDAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATELIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN LAW OR EQUITYINCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OROTHERWISE EXCEED THE TOTAL SUBSCRIPTION AMOUNTS PAID TO THE PROVIDER UNDER THISAGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM
Term and Termination
11. Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and continues for a full 12 months. Either party can terminate this agreement for any reason with 90 days notice.
(b) Termination. In addition to any other express termination right set forth in thisAgreement
(i) Either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
(ii) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) the other party suspends ,or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986; (C)makes or seeks to make a general assignment for the benefit of its creditors;(D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (E) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above.
(c) Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on www.swap-commerce.com/direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Software Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least 30 days' advance notice of changes to11any service level that Provider reasonably anticipates may result in a material reduction in quality or services.
Governing Law and Jurisdiction
13. Governing Law and Jurisdiction.
This agreement and any dispute or claim arising out of orin connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement constitutes the entire agreement and understandingbetween the parties hereto with respect to the subject matter hereof and supersedes all prior andcontemporaneous understandings, agreements, representations, and warranties, both written and oral,with respect to such subject matter. Any noticesto us must be sent to our registered office address availableat www.swap-commerce.com and must be delivered either in person, by certified or registered mail, returnreceipt requested and postage prepaid, or by recognized overnight courier service, and are deemed givenupon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electroniccommunications from us. These electronic communications may include notices about applicable fees andcharges, transactional information, and other information concerning or related to the Software Services.You agree that any notices, agreements, disclosures, or other communications that we send to youelectronically will satisfy any legal communication requirements, including that such communications be inwriting. The invalidity, illegality, or unenforceability of any provision herein does not affect any otherprovision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Anyfailure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiverand will not limit our rights with respect to such breach or any subsequent breaches. This Agreement ispersonal to you and may not be assigned or transferred for any reasonwhatsoeverwithout our priorwrittenconsent and any action or conduct in violation of the foregoing will be void and without effect. We expresslyreserve the right to assign this Agreement and to delegate any of its obligations hereunder.