VIRTUAL SPACES AND SWIVELMETA SERVICES TERMS & CONDITIONS
BY ENTERING INTO AN ORDER FORM FOR A VIRTUAL SPACE OR SWIVELMETA SERVICES (AN “ORDER FORM”) OR OTHERWISE ACCESSING THE MODELS OR SERVICES (AS DEFINED BELOW) YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS SET FOR THBELOW (THIS “AGREEMENT”). THIS AGREEMENT REPRESENTS A BINDING CONTRACT BETWEEN YOU AND SWIVEL, INC. (“SWIVEL”) FOR YOUR USE OF THE MODELS AND SERVICES. THIS AGREEMENTIS EFFECTIVE AS OF THE EARLIER OF (1) THE EFFECTIVE DATE SET FORTH IN THE ORDER FORM OR (2) THE DATE YOU FIRST ACCESS THE MODELS OR THE SERVICES. YOU AGREE TO RECEIVE ELECTRONIC DISCLOSURES AND NOTICES FROM, AND TO TRANSACT ELECTRONICALLY WITH, SWIVEL.
THIS AGREEMENT CONTAINS LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTY, CONSENT TO USE OF PERSONAL INFORMATION AND OTHER IMPORTANT TERMS. PLEASE READ IT CAREFULLY BEFORE PROCEEDING.
IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR CONTRACT WITH AN ENTITY (E.G., A CORPORATION, LIMITED LIABILITYCOMPANY, OR PARTNERSHIP), (A) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT, AND (B) “CUSTOMER,” AS USED IN THIS AGREEMENT, REFERS TO THAT ENTITY.
Swivel and Customer are each referred to individually as a “Party” and collectively as the “Parties.”
Article I
DEFINITIONS AND CONSTRUCTION
1.1 Definitions. Capitalized terms used in this Agreement are defined below or in the context in which they are used and will have the meanings therein indicated.
(a) “Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. For purposes of this definition, the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities of such Person.
(b) “Agreement” means this Agreement and Schedules referenced in and attached to this Agreement, including any Order Form entered into under this Agreement.
(c) “Authorized User” means (i) an employee, officer, or director of Customer, (ii) an individual acting solely for the benefit of Customer, or (iii) an employee, officer, or director of the Affiliate(s) of Customer listed on the applicable Order Form.
(d) “Business Day” means any day except Saturday, Sunday, or a Federal or State holiday in New York City on which banking institutions are closed.
(e) “Claims” means any claims, demands, suits, liabilities, judgments, obligations, causes of action (including third party claims), penalties, costs, expenses or damages of any kind or nature, including reasonable attorneys’ fees, court costs and related disbursements, or losses of any kind or nature whatsoever (whether incurred by the indemnified Party inactions involving third parties or in actions against the indemnifying Party to enforce its rights hereunder, and whether brought on an individual, class, collective, representative, government agency or other basis).
(f) “Confidential Information” means: (i) with respect to Swivel, the Models, the technology, knowhow and other information related to Swivel’s current and/or proposed business and/or operations, the terms of this Agreement (including pricing provisions contained in an Order Form), and all information that is marked as confidential, or that shouldr easonably be understood to be confidential (collectively, the “Swivel Confidential Information”), and (ii) with respect to Customer, any competitively sensitive information, including information about price, output, marketing, or promotional information not in the public domain, or any information or data that is marked as confidential, or that should reasonably be understood to be confidential (collectively, the “Customer Confidential Information”); provided, however, “Confidential Information” does not include any particular information that the receiving Party can demonstrate (1) was, at the time of disclosure to it, in the public domain other than through disclosure by a party bound by confidentiality or non-use obligations with respect to such information, (2) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of any party bound by confidentiality or non-use obligations with respect to such information, (3) was already known by,or in the possession of, such Party at the time of disclosure to it, (4) was received after disclosure to it from a third party who had a lawful right to disclose such information to it, or (5) was independently developed by suchParty without reference to Confidential Information of the other Party, as shown by such Party’s then-contemporaneous documentary evidence kept in the ordinary course of such Party’s business.
(g) “Customer Systems” means all data, software, networks, and systems owned by or licensed to Customer, that interact with the Models.
(h) “Deliverables” means the Models, Documentation and any tangible items specifically identified as a “Deliverable” in an Order Form, including, for example, the tangible embodiments of specifications, drawings, artwork, creative materials, ordiagrams created by Swivel in the course of Swivel’s provision of the Services and specific to Customer.
(i) “Deployment” means the installation, publication and/or activation of the applicable Model into a production version of the Virtual Platform in a manner that permits authorized users of the Virtual Platform to interact with the Models.
(j) “Documentation” means any written instruction manuals regarding the Models that Swivel provides to Customer. Documentation includes any updates or modifications that Swivel may make to such Documentation from time to time in its sole discretion.
(k) “Intellectual Property” means any and all proprietary, industrial and intellectual property rights, under the law of any jurisdiction or rights under international treaties, both statutory and common law rights, including:
(i) utility models, supplementary protection certificates,patents and applications for same, and extensions, divisions, continuations,continuations-in-part, reexaminations, and reissues thereof, (ii) trademarks,service marks, trade names, slogans, domain names, logos, trade dress and other identifiers of source, and registrations and applications for registrations thereof (including all goodwill associated with the foregoing), (iii)copyrights, moral rights, database rights, other rights in works of authorship and registrations and applications for registration of the foregoing, and (iv)trade secrets, know-how, and rights in Confidential Information, including designs, formulations, concepts, compilations of information, methods,techniques, procedures, and processes, whether or not patentable.
(l) “Models” means each finished virtual room,building or other environment provided by Swivel to Customer pursuant to an Order Form.
(m) “Order Form” means an order form entered into between the Parties for delivery of Services and Deliverables.
(n) “Person” means any domestic or foreign corporation, joint stock company, limited liability company, association,partnership, joint venture, organization, individual, business or other trust,government or governmental agency or any other entity or organization of any kind or character.
(o) “Personal Data” means any information or data that identifies or could reasonably be used to identify a natural person or household, including: a person’s first and last name, home or other physical address, telephone number, fax number, email address or other online identifier, Social Security number or other third-party issued identifier(including state identification number, driver’s license number, or passport number), biometric data, health information, credit card or other financial information (including bank account information), precise geolocation information, or any other device-specific number or identifier.
(p) “Services” means the services provided by Swivelto Customer specifically set forth and defined in an Order Form, including installation, integration, deinstallation, minting, advisory, planning or maintenance services related to the Models.
(q) “Specifications” means the applicable requirements of (i) the Agreement, (ii) the written specifications in the Order Form, and(iii) the Documentation.
(r) “Third Party Software” means any software provided by third parties that is part of the Models or is necessary for Customer to access or use the Models.
(s) “Virtual Platform” means a virtual destination chosen by Customer to Deploy the Models.
1.2 Rules of Construction. The article and section headings contained in this Agreement are for reference purposes only and should not affect the meaning or interpretation of this Agreement. As used in this Agreement, unless otherwise provided to the contrary,(a) all references to days, months, quarters or years are references to calendar days, months, quarters or years and (b) any reference to a “Section,”“Article,” “Exhibit” or “Schedule” refer to a section or article of this Agreement or an exhibit or schedule to this Agreement. The words “hereof,” “herein” and “hereunder”and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The terms “include,” “includes” or“including” will mean “including without limitation.” References in this Agreement to “$” are a reference to United States dollars unless otherwise specified.
Article II
LICENSES AND USE RESTRICTIONS
2.1 Model Assignment. Subject to Section 2.2 and Customer’s payment of the applicable fees under Article IV, Swivel hereby assigns to Customer all right, title and interest in and to the Models.
2.2 Swivel Materials. Notwithstanding anything to the contrary in this Agreement, including Section 2.1, as between the Parties, all (a) ideas, concepts, tools, processes, materials and Intellectual Property of Swivel existing prior to the Effective Date or developed by or on behalf of Swivel other than specifically for Customer pursuant to an Order Form, and (b)Documentation (collectively, the “Swivel Materials”), remain the sole and exclusive property of Swivel. Swivel hereby grants to Customer a non-exclusive, non-transferable (unless transferring pursuant to Section 10.3), perpetual,worldwide, fully paid-up license to use, disclose, copy, display, distribute,or otherwise exploit the Swivel Materials solely to the extent incorporated into or necessary for the use of the Models as contemplated by this Agreement. Swivel reserves all rights in Swivel Materials that are not expressly granted to Customer under this Agreement.
2.3 Customer Materials. As between the Parties, all ideas, concepts,tools, processes, materials and Intellectual Property of Customer existing prior to the Effective Date or developed by or on behalf of Customer outside of the scope of this Agreement (collectively, the “Customer Materials”) remain the sole and exclusive property of Customer. Customer hereby grants Swivel a non-exclusive, non-transferable (unless transferring pursuant to Section 10.3), worldwide, royalty-free,fully paid-up license to use, disclose, copy, display, distribute, or otherwise exploit the Customer Materials solely to the extent necessary to perform the Services. Customer reserves all rights in Customer Materials that are not expressly granted to Swivel under this Agreement.
2.4 Proprietary Notices. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by Swivel on or in the Models, Documentation, or other Deliverables.
2.5 Restrictions. Except as expressly permitted in this Agreement or an Order Form, Customer shall not, and shall not allow any Person to: (a) decompile, disassemble, or otherwise reverse engineer the Deliverables or attempt to reconstruct or discover any source code, underlying ideas,algorithms, file formats or programming interfaces of the Models by any means whatsoever, (b) distribute, sell, rent, lease, or use the Deliverables, or any portion thereof, for time sharing, service provider, or like purposes, (c)modify, translate or create derivative works of any part of the Deliverables,(d) attempt to circumvent or disable any security mechanism that protects the Models against unauthorized use, use the Deliverables or Services for any illegal purposes or in violation of any rules or terms of use of the applicable Virtual Platform, or (f) use the Deliverables or Services in violation of applicable laws or regulations. For clarity, standard manipulation by users interacting with the Models through a Virtual Platform is not considered modification or creation of derivative works of the Models.
2.6 Third Party Software. Customer acknowledges that the Deliverables may include Third Party Software that is not owned by Swivel or Customer. Customer further acknowledges that there may be certain limitations and restrictions pertaining to the use of such Third Party Software and (a) agrees to comply with any such limitations and/or restrictions, and (b) enter into any agreement required by the licensor(s) of such Third Party Software. Except for the warranties set forth in Section 7.1, Swivel disclaims any and all obligations, representations or warranties with respect to the Third Party Software, which is being provided to Customer on an as-is, where is basis.
2.7 Customer Personal Data.
(a) If Swivel receives any Personal Data from Authorized Users in the course of and for the purpose of Swivel’s provision of the Models and any related Services (“Customer Personal Data”), Swivel will comply with the terms set forth in this Section 2.7 with respect to such Personal Data.
(b) Swivel shall (i) use reasonable security procedures and practices to protect Customer Personal Data against unauthorized or accidental access, loss, alteration, disclosure, destruction, and (ii) complywith all U.S. data privacy and information security laws that apply to Swivel with respect to such Customer Personal Data; provided that Swivel will perform the Services in the United States and does not agree to comply with the data privacy and information security laws of another jurisdiction.
(c) Customer represents and warrants that it has all consents and rights necessary to provide the Customer Personal Data to Swivel for processing in accordance with this Agreement, including the transfer of Customer Personal Data to the United States.
Article III
SCOPE OF SERVICES
3.1 Generally. Subject to the terms of this Agreement and Customer’s payment of the applicable fees under Article IV and compliance with Section 10.1, Swivel shall provide the Services that are described in an Order Form.
3.2 Acceptance Criteria for the Models. The Models will be deemed accepted the date on which the Models are Deployed or Customer receives access to the Models (the “Access Date”). However, if acceptance criteria is stipulated in the Order Form, the Models will be deemed accepted within (10) Business Days ofthe Access Date unless Customer notifies Swivel of any material defects or deficiencies of such Models as compared to the Specifications set forth in the Order Form prior to the end of such time period, provided that such notice describes in detail the nature of such defects or deficiencies. Swivel will have thirty(30) days from receipt of such notice to correct such failure(s). The Parties may mutually agree upon an additional time period in order to continue correction of such failure(s). Customer may terminate the applicable Order Form upon written notice if, after Customer has completed at least two (2) review cycles as described in this Section 3.2, the Models still does not comply in all material respects with such Specifications to the extent previously identified by Customer in written notices to Swivel, provided further that there are no new non-compliance issues that arose as a result of the changes to the Models made in the review cycles. If Customer (i) does not provide such notice within the ten (10) Business Day time frame set forth above or (ii) uses such Models in a production environment, such Model will be deemed accepted and Customer may not terminate the applicable Order Form except in accordance with Section 9.2. If Customer is responsible for Deployment of the Models, the Access Date is the earlier of (A) the date Customer Deploys the Models, and (B) fifteen (15) Business Days after the date Swivel delivers theModels to Customer or otherwise provider Customer access to the Models.
3.3 Acceptance Criteria for Other Deliverables. If the Services include creation of Deliverables other than the Models, Swivel shall provide such Deliverables according to the Specifications and any Deliverable will be deemed accepted on the date such Deliverable is received by Customer. However, if acceptance criteria is stipulated in the Order Form, within ten (10) Business Days of delivery of sucha Deliverable to Customer, Customer must identify, in the form of a written notice to Swivel, any material defects or deficiencies as compared to the Specifications. Swivel will have thirty (30) days from receipt of such notice to correct such material defects or deficiencies. If necessary, the Parties may mutually agree upon an additional time period in order to continue acceptance testing of the corrected Deliverables. Customer may terminate the applicable Order Form upon written notice if, after Customer has completed at least two (2)review cycles as described in this Section 3.3, such Deliverable,as revised, does not comply in all material respects with the Specifications to the extent previously identified by Customer in written notices to Swivel,provided that there are no new non-compliance issues that arose as a result of the changes to the Deliverable made in the review cycles. If Customer (a) does not provide such notice within the ten (10)Business Day time frame set forth above or (b) uses such Deliverable in a production environment, such Deliverables will be deemed accepted by Customer and Customer may not terminate the applicable Order Form except in accordance with Section 9.2.
Article IV
FEELS AND PAYMENT TERMS
4.1 Fees Due. Customer shall pay Swivel the fees set forth in the applicable Order Form for the Services. If no currency is specified in the Order Form, all Fees must be paid in United States Dollars.Fees will be determined based on the nature of the Services, and the number of scenes and overall design complexity of the Models. Unless otherwise set forth in the applicable Order Form, (a) all fees will be due and payable prior to the Deliverables being provided to Customer,and (b) all fees for Deployment Services will be due and payable within thirty(30) days of the date of the applicable invoice. Customer shall pay each invoice by wire funds transfer or other reasonable means acceptable to Swivel to an account specifiedby Swivel. In addition to the fees for the Deliverables and Services, Customer shall reimburse Swivel for all reasonable, out-of-pocket travel expenses incurred in connection with Swivel’s performance of its obligations hereunder, provided such expenses are approved- by Customer in advance. Payment of fees in accordance with this provision does not imply acceptance of any Deliverables;any acceptance of Deliverables will be governed by the terms of Sections 3.2 and 3.3 and the applicable Order Form setting forth the Specifications for such Deliverables.
4.2 Disputes and Nonpayment. If Customer has a good faith dispute regarding any amount on an invoice, Customer must notify Swivel prior to the due date of such invoice. If no such notice is received within such period, all amounts on the invoice will be considered undisputed. In the event any undisputed amounts are not received by Swivel within thirty (30) days after payment is due, Swivel has the right to charge and Customer shall pay interest on such overdue amount at the lesser of (a) one and one-half percent (1.5%) or(b) the maximum lawful rate per month. Swivel may suspend performance of the Services for non-payment if when Customer fails to make a payment, Swivel promptly provides Customer with written notice (“Suspension Notice”) that failure to cure such non-payment will result in a suspension of the Services not less than ten (10) Business Days after the date of the Suspension Notice.
4.3 Taxes All fees due under this Agreement are exclusive of taxes. Customer is responsible for payment of sales and use taxes associated with the Services and Customer’s use of the Models under this Agreement (other than taxes payable by Swivel with respect to Swivel’s net income or employment of personnel).
Article V
CUSTOMER RESPONSIBILITIES
5.1 Customer Documentation. Prior to entering into an Order Form,Customer is responsible for providing Swivel with accurate and complete Customer Materials constituting all information necessary for Swivel to provide the Deliverables and Services. The fees set forth in any Order Form are based on such Customer Materials. If, in Swivel’s good faith belief:(i) such Customer Materials are found to be inaccurate or incomplete, or (ii)Customer requests any change in the scope or nature of the Deliverables or Services that requires additional or different effort or additional material cost by Swivel, then Swivel will have no obligation to provide the Deliverables or Services until the Parties agree, in writing, to an appropriate adjustment in such fees.
5.2 Cooperation. Customer will provide reasonable cooperation to Swivel through Customer designated technical point(s) of contact and other personnel involved in requesting and receiving Services.
Article VI
CONFIDENTIALITYAND PROPRIETARY RIGHTS
6.1 Confidentiality
(a) Each Party will use at least the same degree of care to prevent disclosing to third parties the Confidential Information of the other Party as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature, but in no event will such care be less than reasonable care.
(b) Neither Party will (i) make any use or copies of the Confidential Information of the other Party except as contemplated by this Agreement, (ii) acquire any right in or assert any lien against the Confidential Information of the other Party, or (iii) refuse for any reason(including a default or material breach of this Agreement by the other Party)to promptly provide to the other Party the Confidential Information of the other Party (including copies thereof) if requested to do so in accordance with Section 6.1(f).
(c) Notwithstanding the foregoing, a Party may disclose the Confidential Information of the other Party if such disclosure is required to satisfy any legal requirement of a competent court or governmental authority; provided, that, promptly upon receiving any such request and to extent that it may legally do so, such Party advises the other Party promptly and, to the extent reasonably practicable, prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, takeaction to assure confidential handling of such Confidential Information, ortake such other action as it deems appropriate to protect such Confidential Information.
(d) Upon the terminati or expiration of this Agreement, or at any time requested by the other Party, each Party shall, except to the extent inconsistent with applicable law, delete or destroy all documentation in any medium that contains the Confidential Information of the other Party, and certify to the destruction of such Confidential Information. Notwithstanding the foregoing, a Party mayretain one (1) copy of the other Party’s Confidential Information for archivalpurposes only, provided such archival copy will remain subject to theconfidentiality obligations in this Agreement.
(e) Nothing contained in this Section 6.1 will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to the Confidential Information of the other Party; provided,however, each Party shall provide to the other such Confidential Information as may be reasonably required by the other Party to perform or use the services hereunder .
(f) Each Party acknowledges that a breach by such Party of any of its obligations under this Section 6.1 could cause irreparable harm and significant injury, the precise measure of which may be difficult to ascertain, and for which monetary damages would not be an adequate remedy. Accordingly, each Party agrees that the other Party will be entitled to specific performance and injunctive or other equitable relief, without bond, asa remedy for any such breach or threatened breach, in addition to all other rights and remedies which such Party may have.
6.2 Publicity. Neither Party shall issue a press release regarding this Agreement unlesssuch press release is mutually agreed by the Parties. Swivel may includeCustomer’s name, logo and summary description of its use of the Deliverables inSwivel published customer list. Swivel mayalso use Customer as a reference and may indicate to others that Customer is a Customerand user of the Deliverables, provided that any other public-facing referenceis approved in advance by Customer in writing.
Article VII
WARRANTIES
7.1 Warranties of Both Parties. Each Party represents and warrants to the other that: (a) it has the full power, authority and legal right to enter into and perform this Agreement in accordance with its terms and that by doing so,is not violating and will not violate any agreement or understanding, written or unwritten, with any third party, (b) this Agreement is a legal, valid and binding obligation on such Party, fully enforceable against it, (c) it has not and shall not during the Term enter into an agreement or commitment with any third party that shall limit its full performance hereto or limit any rights granted to the other Party hereunder, or (d) it will comply with all applicable laws in connection with its performance under this Agreement.
7.2 Model Warranty. Swivel represents and warrants that: (a) as ofthe Access Date, the Models shall materially conform to the Specifications, and(b) to Swivel’s knowledge, the Models, when delivered to Customer, is free of any computer viruses, worms, Trojan horses, protect codes (except as set forth below), data destruct keys or other similar programming devices that would reasonably be expected to be used to access, modify, delete, damage or disable the Customer Systems, and Customer’s other software, computer hardware, network or data (“Illicit Code”). Notwithstanding the foregoing, technical protection measures (i.e.passwords, license keys, and product activation technology) that are designed to prevent the unauthorized use of the Models outside the license scope of this Agreement will not be deemed to be Illicit Code. If damage to Customer Systems occurs solely as a result of Illicit Code in the Models that was present at time of delivery of the Models, then Swivel shall use commercially reasonable efforts to repair the damage caused directly by such Illicit Code at its sole cost and expense. THE FOREGOING IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ILLICIT CODE IN THEMODELS.
7.3 Services Warranty. Swivel warrants that it shall perform the Services in a good and workmanlike manner at the applicable industry standards, and that such Services will be performed by qualified individuals. If Swivel fails to perform its services in a good and workmanlike manner, then Customer’s sole and exclusive remedy with respect to such failure, and Swivel’s sole obligation, WILL be to correct any deficiency in the nonconforming services at no additional cost to Customer.
7.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE MODELS AND SERVICES ARE PROVIDED “AS IS,” AND SWIVEL does not warrant that the MODELS will be free from defects or errors, THAT IT WILL BE SECURE, or that the MODELS ARE designed to meet all of Customer’s business requirements, including the operation of the business. Swivel FURTHER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, ACCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADETO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THEMODELS ARE DELIVERED WITH THE EXPLICIT UNDERSTANDING AND AGREEMENT OF CUSTOMER THAT ANY ACTION TAKEN OR EXPENDITURES MADE BY CUSTOMER BASED ON ITS EXPECTED USES OF THE MODELS, OR BY OTHERS RELYING ON USE OF THE MODELS, WILL BE AT CUSTOMER’S OWN RISK AND RESPONSIBILITY AND CUSTOMER SHALL HAVE NO CLAIM AGAINST SWIVEL AND HEREBY RELEASES SWIVEL FROM ANY LIABILITY AS A CONSEQUENCE THEREOF.
Article VIII
INDEMNIFICATION; LIMITS ON REMEDIES AND LIABILITY
8.1 Indemnification by Swivel. Subject to the terms of this Agreement, Swivel shall defend, indemnify and hold harmless Customer and its Affiliates, officers, directors and representatives from and against any third party Claims arising out of or relating to: (a) the gross negligence, fraud and willful misconduct of Swivel, (b) any breach by Swivel of the representations or warranties set forth in Section 7.1, or (c) any claim by a third party that use of the Deliverables in accordance with this Agreement infringes a valid patent or copyright in the United States or misappropriates a trade secret in the United States. Notwithstanding the foregoing, Swivel shall have no liability or obligation to Customer, its Affiliates or any other Person under this Section 8.1 to the extent a Claim arises from (i) the use of the Deliverables in connection or in- combination with equipment, devices or software not supplied by, approved by,or under the express direction of Swivel, (ii) the use of the Models contrary to the Documentation or this Agreement, or (iii) unapproved modifications of the Models by or on behalf of Customer without the express prior consent of Swivel.
8.2 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Swivel and its Affiliates, officers, directors and representatives from and against any third party Claims arising out of or relating to: (a) the gross negligence, fraud or willful misconduct of Customer, (b) any breach by Customer of its representation or warranties under Section 7.1, or (c) Customer’s breach of Article II, Section 10.2 or any other use of the Models other than as expressly set forth in this Agreement, or (d) any claim by a third party that the Customer Materials infringe a valid patent,trademark or copyright in the United States or misappropriate a trade secret in the United States.
8.3 Indemnification Procedures. Each Party’s indemnification obligations are conditioned upon the following: (a) the indemnified party shall provide prompt written notice of any claim to the indemnifying party, provided that any failure to provide such prompt written notice will only relieve the indemnifying party of its obligations to the extent its ability to defend such claim is materially prejudiced by such failure, (b) the indemnifying party shall not consent to entry of any judgment or admission of any liability of the indemnified party without the prior written approval of the indemnified party, and (c) the indemnified party shall cooperate in the defense of any claim as reasonably required by the indemnifying party at the indemnifying party’s sole expense. It is acknowledged and agreed that nothing contained herein (i) shall be considered a waiver by either Party of any remedy or right, in law or equity, all of which are expressly reserved without prejudice, and (ii) prevents the indemnified party from obtaining separate counsel at such party’s sole expense.
8.4 Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER Article VIII, OR ARISING OUT OF EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER Article VI, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,PUNITIVE, EXEMPLARY, RELIANCE, OR COVER DAMAGES, INCLUDING LOSS OF PROFITS,REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING OUT OF EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER Article VIII, OR ARISING OUT OF EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER Article VI, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SWIVEL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH LIABILITY. SWIVEL’S TOTAL AGGREGATE LIABILITY UNDER SECTION 8.1(C) IS LIMITED TO THREE TIMES THE FEES PAID BY CUSTOMER TO SWIVEL FOR THE APPLICABLE DELIVERABLE. FOR CLARITY, A SECURITY BREACH IS NOT CONSIDERED A BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER Article VI. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT(INCLUDING SOLE OR CONCURRENT NEGLIGENCE), BY OPERATION OF LAW OR OTHERWISE. LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Article IX
TERMINATION
9.1 Term. The term of this Agreement will commence on the date set forth in the Order Form and continue for the period set forth in the Order Form (the “Term”), unless terminated earlier in accordance with Section 9.2.
9.2 Term. The Agreement or applicable Order Form may be terminated under the following scenarios:
(a) By Swivel, thirty (30 days after Swivel gives Customer notice of Customer's material breach of any provision of this Agreement or an Order Form (other than Customer's breach of its obligations under Section 2.5 or Section 10.2, which breach will result in immediate termination), unless Customer has cured such breach during such 30-day period;
(b) By Customer, thirty(30) days after Customer gives Swivel notice of Swivel’s material breach of any provision of this Agreement or Order Form, unless Swivel has cured such breachduring such 30-day period;
(c) Immediately by Swivel if any of the following events, which exist as to Customer, remain uncured for more than sixty (60) days: (i) entry of an order for relief under Title 11 of the United States Code, (ii) the making of a general assignment for the benefit of creditors, (iii) the appointment of a general receiver or trustee in bankruptcy of Customer’s business or property,or (iv) action under any state insolvency or similar law for the purpose of bankruptcy, reorganization, or liquidation, unless within the specified 60-day period, Customer, its receiver, or its trustee in bankruptcy provides to Swivel adequate written assurances, reasonably acceptable to the Swivel, of Customer’s continuing ability and willingness to fulfill all its obligations under this Agreement; or
(d) Immediately upon written agreement of Swivel and Customer.
9.3 Effect of Termination. Upon any expiration or termination of this Agreement or applicable Order Form, Customer shall promptly pay all fees incurred prior to the expiration or termination date, including for Services performed through the expiration or termination date. Upon termination of this Agreement or an Order Form pursuant to Section 9.2(a), Customer shall promptly cease using the applicable Deliverables and, at Swivel’s request,return or permanently delete such Deliverables.
Article X
MISCELLANEOUS
10.1 Use of Subcontractors. Swivel may subcontract or delegate any Services to any third party without Customer’s prior written consent, provided that Swivel shall remain responsible for the performance of all personnel andany such subcontractors.
10.2 Export Patrol. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of certain materials. Accordingly, Customer shall not export, directly or indirectly, all or part of the Deliverables, any product or other materials derived from the Deliverables,to any country without the appropriate United States and/or foreign government licenses. Customer shall not export(including via the Internet) the Deliverables to any country subject to U.S.embargo.
10.3 Anti-Bribery Laws. Each Party represents, warrants, and covenants that, in connection with this Agreement and the business resulting therefrom, it is knowledgeable about and will comply with all applicable laws relating to anti-bribery or anti-money laundering laws. Nothing in this Agreement requires a Party to perform any part of this Agreement or take any-actions if, by doing so, the Party would not comply with anti-bribery laws,anti-money laundering laws or any other applicable laws.
10.4 Assignment. Neither Customer nor Swivel may assign or transfer this Agreement (by operation of law or otherwise) without the other Party’s prior written consent except that either Party may, without the consent of the other Party, (a) assign this Agreement to an acquirer of all or substantially all of a Party’s assets or stock, or (b) assign its rights and obligations hereunder to any Affiliate, solong as the assignee under the scenarios in (a) and (b) assumes the obligations of the assigning Party in writing. This Agreement is binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and permitted assigns.
10.5 Relationship of Parties. Each Party is acting only as an independent contractor to the other Party. Notwithstanding any provision of this Agreement to the contrary, this Agreement establishes and will only be construed as establishing a contract between unrelated business entities and does not and will not be deemed to create a partnership, joint venture, agency or any other type of joint relationship.
10.6 Notice. Any notice required or permitted by this Agreement will be in writing and in English and will be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally, (b) by overnight courier upon written verification of receipt, (c) by certified or registered mail, return receipt requested, upon verification of receipt, or (d) by electronic mail. Notice will be sent to the addresses set forth in the Order Form or such other address as either Party may specify in writing. Notices related to any breach of this Agreement must be sent by (a), (b) or (c) only.
If to Swivel:
[●]
Swivel,Inc.
7500 Rialto Blvd, Suite 1-250
Austin,TX 78735
Email: [●]
10.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid,unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on an amendment, the invalid term,condition, or provision will be severed from the remaining terms, conditions,and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
10.8 No Third-Party Beneficiaries. Nothing contained in this Agreement is intended to confer upon any Person (other than the Parties hereto and the Persons specifically identified as indemnitees hereunder) any rights, benefits or remedies of any kind or character whatsoever, and no Person will be deemed a third-party beneficiary under or by reason of this Agreement.
10.9 Amendment. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the Parties to this Agreement.
10.10 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be inwriting to be effective. Failure,neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.
10.11 Entire Agreement. This Agreement (including any Schedules,Exhibits, and Order Form hereto) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the Parties with respect to the subject matter hereof. There are no representations, understandings or agreements relating to this Agreement that are not fully expressed in this Agreement.
10.12 Governing Law;Exclusive Jurisdiction. This Agreement will be governed and construed in accordance with the laws of the State of Texas, USA, without regard to its principles of conflicts of laws. Any claim arising under this Agreement will be prosecuted exclusively in a federal or state court of competent jurisdiction located within Austin, Texas, USA, and the parties consent to the jurisdiction of such court and to the service of process by mail. This Section does not preclude any jurisdiction necessary for resolution of any claim arising under this Agreement under the Defend Trade Secrets Act.
10.13 Force Majeure. Neither Party shall be responsible for any delay in performing or failure to perform due to circumstances beyond its reasonable control, including acts of God, acts of terrorism, war, riot,embargoes, acts of civil or military authorities, epidemic, fire, flood,earthquake or labor strike (“Force Majeure Event”). The Party claiming the benefit of a Force Majeure Event shall promptly notify the other party of the occurrence and the anticipated duration of such Force Majeure Event, and shall promptly resume performance at the end of such Force Majeure Event. In the event a Force Majeure Event continues for a period of twenty (20) Business Days, either Party may terminate this Agreement by providing written notice to the other Party. Notwithstanding the foregoing, the obligation to pay amounts due and owing under this Agreement that arose prior to the occurrence of the Force Majeure Event will not be extinguished or delayed by virtue of the Force Majeure Event or the termination of this Agreement by reason thereof.
10.14 Survival. The following provisions of this Agreement survive the termination or expiration of this Agreement: Article I, Sections 2.1 – 2.2, Sections 2.4 – 2.6, Section 4.3, Article VI, Section 7.4, and Article X, and, solely with respect to claims arising prior to the effective date of termination, Section 7.1, Article VIII, and Section 9.3 will so survive.
BY ENTERING INTO AN ORDER FORM FOR A VIRTUAL SPACE OR SWIVELMETA SERVICES (AN “ORDER FORM”) OR OTHERWISE ACCESSING THE MODELS OR SERVICES (AS DEFINED BELOW) YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS SET FOR THBELOW (THIS “AGREEMENT”). THIS AGREEMENT REPRESENTS A BINDING CONTRACT BETWEEN YOU AND SWIVEL, INC. (“SWIVEL”) FOR YOUR USE OF THE MODELS AND SERVICES. THIS AGREEMENTIS EFFECTIVE AS OF THE EARLIER OF (1) THE EFFECTIVE DATE SET FORTH IN THE ORDER FORM OR (2) THE DATE YOU FIRST ACCESS THE MODELS OR THE SERVICES. YOU AGREE TO RECEIVE ELECTRONIC DISCLOSURES AND NOTICES FROM, AND TO TRANSACT ELECTRONICALLY WITH, SWIVEL.
THIS AGREEMENT CONTAINS LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTY, CONSENT TO USE OF PERSONAL INFORMATION AND OTHER IMPORTANT TERMS. PLEASE READ IT CAREFULLY BEFORE PROCEEDING.
IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR CONTRACT WITH AN ENTITY (E.G., A CORPORATION, LIMITED LIABILITYCOMPANY, OR PARTNERSHIP), (A) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT, AND (B) “CUSTOMER,” AS USED IN THIS AGREEMENT, REFERS TO THAT ENTITY.
Swivel and Customer are each referred to individually as a “Party” and collectively as the “Parties.”
Article I
DEFINITIONS AND CONSTRUCTION
1.1 Definitions. Capitalized terms used in this Agreement are defined below or in the context in which they are used and will have the meanings therein indicated.
(a) “Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. For purposes of this definition, the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities of such Person.
(b) “Agreement” means this Agreement and Schedules referenced in and attached to this Agreement, including any Order Form entered into under this Agreement.
(c) “Authorized User” means (i) an employee, officer, or director of Customer, (ii) an individual acting solely for the benefit of Customer, or (iii) an employee, officer, or director of the Affiliate(s) of Customer listed on the applicable Order Form.
(d) “Business Day” means any day except Saturday, Sunday, or a Federal or State holiday in New York City on which banking institutions are closed.
(e) “Claims” means any claims, demands, suits, liabilities, judgments, obligations, causes of action (including third party claims), penalties, costs, expenses or damages of any kind or nature, including reasonable attorneys’ fees, court costs and related disbursements, or losses of any kind or nature whatsoever (whether incurred by the indemnified Party inactions involving third parties or in actions against the indemnifying Party to enforce its rights hereunder, and whether brought on an individual, class, collective, representative, government agency or other basis).
(f) “Confidential Information” means: (i) with respect to Swivel, the Models, the technology, knowhow and other information related to Swivel’s current and/or proposed business and/or operations, the terms of this Agreement (including pricing provisions contained in an Order Form), and all information that is marked as confidential, or that shouldr easonably be understood to be confidential (collectively, the “Swivel Confidential Information”), and (ii) with respect to Customer, any competitively sensitive information, including information about price, output, marketing, or promotional information not in the public domain, or any information or data that is marked as confidential, or that should reasonably be understood to be confidential (collectively, the “Customer Confidential Information”); provided, however, “Confidential Information” does not include any particular information that the receiving Party can demonstrate (1) was, at the time of disclosure to it, in the public domain other than through disclosure by a party bound by confidentiality or non-use obligations with respect to such information, (2) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of any party bound by confidentiality or non-use obligations with respect to such information, (3) was already known by,or in the possession of, such Party at the time of disclosure to it, (4) was received after disclosure to it from a third party who had a lawful right to disclose such information to it, or (5) was independently developed by suchParty without reference to Confidential Information of the other Party, as shown by such Party’s then-contemporaneous documentary evidence kept in the ordinary course of such Party’s business.
(g) “Customer Systems” means all data, software, networks, and systems owned by or licensed to Customer, that interact with the Models.
(h) “Deliverables” means the Models, Documentation and any tangible items specifically identified as a “Deliverable” in an Order Form, including, for example, the tangible embodiments of specifications, drawings, artwork, creative materials, ordiagrams created by Swivel in the course of Swivel’s provision of the Services and specific to Customer.
(i) “Deployment” means the installation, publication and/or activation of the applicable Model into a production version of the Virtual Platform in a manner that permits authorized users of the Virtual Platform to interact with the Models.
(j) “Documentation” means any written instruction manuals regarding the Models that Swivel provides to Customer. Documentation includes any updates or modifications that Swivel may make to such Documentation from time to time in its sole discretion.
(k) “Intellectual Property” means any and all proprietary, industrial and intellectual property rights, under the law of any jurisdiction or rights under international treaties, both statutory and common law rights, including:
(i) utility models, supplementary protection certificates,patents and applications for same, and extensions, divisions, continuations,continuations-in-part, reexaminations, and reissues thereof, (ii) trademarks,service marks, trade names, slogans, domain names, logos, trade dress and other identifiers of source, and registrations and applications for registrations thereof (including all goodwill associated with the foregoing), (iii)copyrights, moral rights, database rights, other rights in works of authorship and registrations and applications for registration of the foregoing, and (iv)trade secrets, know-how, and rights in Confidential Information, including designs, formulations, concepts, compilations of information, methods,techniques, procedures, and processes, whether or not patentable.
(l) “Models” means each finished virtual room,building or other environment provided by Swivel to Customer pursuant to an Order Form.
(m) “Order Form” means an order form entered into between the Parties for delivery of Services and Deliverables.
(n) “Person” means any domestic or foreign corporation, joint stock company, limited liability company, association,partnership, joint venture, organization, individual, business or other trust,government or governmental agency or any other entity or organization of any kind or character.
(o) “Personal Data” means any information or data that identifies or could reasonably be used to identify a natural person or household, including: a person’s first and last name, home or other physical address, telephone number, fax number, email address or other online identifier, Social Security number or other third-party issued identifier(including state identification number, driver’s license number, or passport number), biometric data, health information, credit card or other financial information (including bank account information), precise geolocation information, or any other device-specific number or identifier.
(p) “Services” means the services provided by Swivelto Customer specifically set forth and defined in an Order Form, including installation, integration, deinstallation, minting, advisory, planning or maintenance services related to the Models.
(q) “Specifications” means the applicable requirements of (i) the Agreement, (ii) the written specifications in the Order Form, and(iii) the Documentation.
(r) “Third Party Software” means any software provided by third parties that is part of the Models or is necessary for Customer to access or use the Models.
(s) “Virtual Platform” means a virtual destination chosen by Customer to Deploy the Models.
1.2 Rules of Construction. The article and section headings contained in this Agreement are for reference purposes only and should not affect the meaning or interpretation of this Agreement. As used in this Agreement, unless otherwise provided to the contrary,(a) all references to days, months, quarters or years are references to calendar days, months, quarters or years and (b) any reference to a “Section,”“Article,” “Exhibit” or “Schedule” refer to a section or article of this Agreement or an exhibit or schedule to this Agreement. The words “hereof,” “herein” and “hereunder”and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The terms “include,” “includes” or“including” will mean “including without limitation.” References in this Agreement to “$” are a reference to United States dollars unless otherwise specified.
Article II
LICENSES AND USE RESTRICTIONS
2.1 Model Assignment. Subject to Section 2.2 and Customer’s payment of the applicable fees under Article IV, Swivel hereby assigns to Customer all right, title and interest in and to the Models.
2.2 Swivel Materials. Notwithstanding anything to the contrary in this Agreement, including Section 2.1, as between the Parties, all (a) ideas, concepts, tools, processes, materials and Intellectual Property of Swivel existing prior to the Effective Date or developed by or on behalf of Swivel other than specifically for Customer pursuant to an Order Form, and (b)Documentation (collectively, the “Swivel Materials”), remain the sole and exclusive property of Swivel. Swivel hereby grants to Customer a non-exclusive, non-transferable (unless transferring pursuant to Section 10.3), perpetual,worldwide, fully paid-up license to use, disclose, copy, display, distribute,or otherwise exploit the Swivel Materials solely to the extent incorporated into or necessary for the use of the Models as contemplated by this Agreement. Swivel reserves all rights in Swivel Materials that are not expressly granted to Customer under this Agreement.
2.3 Customer Materials. As between the Parties, all ideas, concepts,tools, processes, materials and Intellectual Property of Customer existing prior to the Effective Date or developed by or on behalf of Customer outside of the scope of this Agreement (collectively, the “Customer Materials”) remain the sole and exclusive property of Customer. Customer hereby grants Swivel a non-exclusive, non-transferable (unless transferring pursuant to Section 10.3), worldwide, royalty-free,fully paid-up license to use, disclose, copy, display, distribute, or otherwise exploit the Customer Materials solely to the extent necessary to perform the Services. Customer reserves all rights in Customer Materials that are not expressly granted to Swivel under this Agreement.
2.4 Proprietary Notices. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by Swivel on or in the Models, Documentation, or other Deliverables.
2.5 Restrictions. Except as expressly permitted in this Agreement or an Order Form, Customer shall not, and shall not allow any Person to: (a) decompile, disassemble, or otherwise reverse engineer the Deliverables or attempt to reconstruct or discover any source code, underlying ideas,algorithms, file formats or programming interfaces of the Models by any means whatsoever, (b) distribute, sell, rent, lease, or use the Deliverables, or any portion thereof, for time sharing, service provider, or like purposes, (c)modify, translate or create derivative works of any part of the Deliverables,(d) attempt to circumvent or disable any security mechanism that protects the Models against unauthorized use, use the Deliverables or Services for any illegal purposes or in violation of any rules or terms of use of the applicable Virtual Platform, or (f) use the Deliverables or Services in violation of applicable laws or regulations. For clarity, standard manipulation by users interacting with the Models through a Virtual Platform is not considered modification or creation of derivative works of the Models.
2.6 Third Party Software. Customer acknowledges that the Deliverables may include Third Party Software that is not owned by Swivel or Customer. Customer further acknowledges that there may be certain limitations and restrictions pertaining to the use of such Third Party Software and (a) agrees to comply with any such limitations and/or restrictions, and (b) enter into any agreement required by the licensor(s) of such Third Party Software. Except for the warranties set forth in Section 7.1, Swivel disclaims any and all obligations, representations or warranties with respect to the Third Party Software, which is being provided to Customer on an as-is, where is basis.
2.7 Customer Personal Data.
(a) If Swivel receives any Personal Data from Authorized Users in the course of and for the purpose of Swivel’s provision of the Models and any related Services (“Customer Personal Data”), Swivel will comply with the terms set forth in this Section 2.7 with respect to such Personal Data.
(b) Swivel shall (i) use reasonable security procedures and practices to protect Customer Personal Data against unauthorized or accidental access, loss, alteration, disclosure, destruction, and (ii) complywith all U.S. data privacy and information security laws that apply to Swivel with respect to such Customer Personal Data; provided that Swivel will perform the Services in the United States and does not agree to comply with the data privacy and information security laws of another jurisdiction.
(c) Customer represents and warrants that it has all consents and rights necessary to provide the Customer Personal Data to Swivel for processing in accordance with this Agreement, including the transfer of Customer Personal Data to the United States.
Article III
SCOPE OF SERVICES
3.1 Generally. Subject to the terms of this Agreement and Customer’s payment of the applicable fees under Article IV and compliance with Section 10.1, Swivel shall provide the Services that are described in an Order Form.
3.2 Acceptance Criteria for the Models. The Models will be deemed accepted the date on which the Models are Deployed or Customer receives access to the Models (the “Access Date”). However, if acceptance criteria is stipulated in the Order Form, the Models will be deemed accepted within (10) Business Days ofthe Access Date unless Customer notifies Swivel of any material defects or deficiencies of such Models as compared to the Specifications set forth in the Order Form prior to the end of such time period, provided that such notice describes in detail the nature of such defects or deficiencies. Swivel will have thirty(30) days from receipt of such notice to correct such failure(s). The Parties may mutually agree upon an additional time period in order to continue correction of such failure(s). Customer may terminate the applicable Order Form upon written notice if, after Customer has completed at least two (2) review cycles as described in this Section 3.2, the Models still does not comply in all material respects with such Specifications to the extent previously identified by Customer in written notices to Swivel, provided further that there are no new non-compliance issues that arose as a result of the changes to the Models made in the review cycles. If Customer (i) does not provide such notice within the ten (10) Business Day time frame set forth above or (ii) uses such Models in a production environment, such Model will be deemed accepted and Customer may not terminate the applicable Order Form except in accordance with Section 9.2. If Customer is responsible for Deployment of the Models, the Access Date is the earlier of (A) the date Customer Deploys the Models, and (B) fifteen (15) Business Days after the date Swivel delivers theModels to Customer or otherwise provider Customer access to the Models.
3.3 Acceptance Criteria for Other Deliverables. If the Services include creation of Deliverables other than the Models, Swivel shall provide such Deliverables according to the Specifications and any Deliverable will be deemed accepted on the date such Deliverable is received by Customer. However, if acceptance criteria is stipulated in the Order Form, within ten (10) Business Days of delivery of sucha Deliverable to Customer, Customer must identify, in the form of a written notice to Swivel, any material defects or deficiencies as compared to the Specifications. Swivel will have thirty (30) days from receipt of such notice to correct such material defects or deficiencies. If necessary, the Parties may mutually agree upon an additional time period in order to continue acceptance testing of the corrected Deliverables. Customer may terminate the applicable Order Form upon written notice if, after Customer has completed at least two (2)review cycles as described in this Section 3.3, such Deliverable,as revised, does not comply in all material respects with the Specifications to the extent previously identified by Customer in written notices to Swivel,provided that there are no new non-compliance issues that arose as a result of the changes to the Deliverable made in the review cycles. If Customer (a) does not provide such notice within the ten (10)Business Day time frame set forth above or (b) uses such Deliverable in a production environment, such Deliverables will be deemed accepted by Customer and Customer may not terminate the applicable Order Form except in accordance with Section 9.2.
Article IV
FEELS AND PAYMENT TERMS
4.1 Fees Due. Customer shall pay Swivel the fees set forth in the applicable Order Form for the Services. If no currency is specified in the Order Form, all Fees must be paid in United States Dollars.Fees will be determined based on the nature of the Services, and the number of scenes and overall design complexity of the Models. Unless otherwise set forth in the applicable Order Form, (a) all fees will be due and payable prior to the Deliverables being provided to Customer,and (b) all fees for Deployment Services will be due and payable within thirty(30) days of the date of the applicable invoice. Customer shall pay each invoice by wire funds transfer or other reasonable means acceptable to Swivel to an account specifiedby Swivel. In addition to the fees for the Deliverables and Services, Customer shall reimburse Swivel for all reasonable, out-of-pocket travel expenses incurred in connection with Swivel’s performance of its obligations hereunder, provided such expenses are approved- by Customer in advance. Payment of fees in accordance with this provision does not imply acceptance of any Deliverables;any acceptance of Deliverables will be governed by the terms of Sections 3.2 and 3.3 and the applicable Order Form setting forth the Specifications for such Deliverables.
4.2 Disputes and Nonpayment. If Customer has a good faith dispute regarding any amount on an invoice, Customer must notify Swivel prior to the due date of such invoice. If no such notice is received within such period, all amounts on the invoice will be considered undisputed. In the event any undisputed amounts are not received by Swivel within thirty (30) days after payment is due, Swivel has the right to charge and Customer shall pay interest on such overdue amount at the lesser of (a) one and one-half percent (1.5%) or(b) the maximum lawful rate per month. Swivel may suspend performance of the Services for non-payment if when Customer fails to make a payment, Swivel promptly provides Customer with written notice (“Suspension Notice”) that failure to cure such non-payment will result in a suspension of the Services not less than ten (10) Business Days after the date of the Suspension Notice.
4.3 Taxes All fees due under this Agreement are exclusive of taxes. Customer is responsible for payment of sales and use taxes associated with the Services and Customer’s use of the Models under this Agreement (other than taxes payable by Swivel with respect to Swivel’s net income or employment of personnel).
Article V
CUSTOMER RESPONSIBILITIES
5.1 Customer Documentation. Prior to entering into an Order Form,Customer is responsible for providing Swivel with accurate and complete Customer Materials constituting all information necessary for Swivel to provide the Deliverables and Services. The fees set forth in any Order Form are based on such Customer Materials. If, in Swivel’s good faith belief:(i) such Customer Materials are found to be inaccurate or incomplete, or (ii)Customer requests any change in the scope or nature of the Deliverables or Services that requires additional or different effort or additional material cost by Swivel, then Swivel will have no obligation to provide the Deliverables or Services until the Parties agree, in writing, to an appropriate adjustment in such fees.
5.2 Cooperation. Customer will provide reasonable cooperation to Swivel through Customer designated technical point(s) of contact and other personnel involved in requesting and receiving Services.
Article VI
CONFIDENTIALITYAND PROPRIETARY RIGHTS
6.1 Confidentiality
(a) Each Party will use at least the same degree of care to prevent disclosing to third parties the Confidential Information of the other Party as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature, but in no event will such care be less than reasonable care.
(b) Neither Party will (i) make any use or copies of the Confidential Information of the other Party except as contemplated by this Agreement, (ii) acquire any right in or assert any lien against the Confidential Information of the other Party, or (iii) refuse for any reason(including a default or material breach of this Agreement by the other Party)to promptly provide to the other Party the Confidential Information of the other Party (including copies thereof) if requested to do so in accordance with Section 6.1(f).
(c) Notwithstanding the foregoing, a Party may disclose the Confidential Information of the other Party if such disclosure is required to satisfy any legal requirement of a competent court or governmental authority; provided, that, promptly upon receiving any such request and to extent that it may legally do so, such Party advises the other Party promptly and, to the extent reasonably practicable, prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, takeaction to assure confidential handling of such Confidential Information, ortake such other action as it deems appropriate to protect such Confidential Information.
(d) Upon the terminati or expiration of this Agreement, or at any time requested by the other Party, each Party shall, except to the extent inconsistent with applicable law, delete or destroy all documentation in any medium that contains the Confidential Information of the other Party, and certify to the destruction of such Confidential Information. Notwithstanding the foregoing, a Party mayretain one (1) copy of the other Party’s Confidential Information for archivalpurposes only, provided such archival copy will remain subject to theconfidentiality obligations in this Agreement.
(e) Nothing contained in this Section 6.1 will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to the Confidential Information of the other Party; provided,however, each Party shall provide to the other such Confidential Information as may be reasonably required by the other Party to perform or use the services hereunder .
(f) Each Party acknowledges that a breach by such Party of any of its obligations under this Section 6.1 could cause irreparable harm and significant injury, the precise measure of which may be difficult to ascertain, and for which monetary damages would not be an adequate remedy. Accordingly, each Party agrees that the other Party will be entitled to specific performance and injunctive or other equitable relief, without bond, asa remedy for any such breach or threatened breach, in addition to all other rights and remedies which such Party may have.
6.2 Publicity. Neither Party shall issue a press release regarding this Agreement unlesssuch press release is mutually agreed by the Parties. Swivel may includeCustomer’s name, logo and summary description of its use of the Deliverables inSwivel published customer list. Swivel mayalso use Customer as a reference and may indicate to others that Customer is a Customerand user of the Deliverables, provided that any other public-facing referenceis approved in advance by Customer in writing.
Article VII
WARRANTIES
7.1 Warranties of Both Parties. Each Party represents and warrants to the other that: (a) it has the full power, authority and legal right to enter into and perform this Agreement in accordance with its terms and that by doing so,is not violating and will not violate any agreement or understanding, written or unwritten, with any third party, (b) this Agreement is a legal, valid and binding obligation on such Party, fully enforceable against it, (c) it has not and shall not during the Term enter into an agreement or commitment with any third party that shall limit its full performance hereto or limit any rights granted to the other Party hereunder, or (d) it will comply with all applicable laws in connection with its performance under this Agreement.
7.2 Model Warranty. Swivel represents and warrants that: (a) as ofthe Access Date, the Models shall materially conform to the Specifications, and(b) to Swivel’s knowledge, the Models, when delivered to Customer, is free of any computer viruses, worms, Trojan horses, protect codes (except as set forth below), data destruct keys or other similar programming devices that would reasonably be expected to be used to access, modify, delete, damage or disable the Customer Systems, and Customer’s other software, computer hardware, network or data (“Illicit Code”). Notwithstanding the foregoing, technical protection measures (i.e.passwords, license keys, and product activation technology) that are designed to prevent the unauthorized use of the Models outside the license scope of this Agreement will not be deemed to be Illicit Code. If damage to Customer Systems occurs solely as a result of Illicit Code in the Models that was present at time of delivery of the Models, then Swivel shall use commercially reasonable efforts to repair the damage caused directly by such Illicit Code at its sole cost and expense. THE FOREGOING IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ILLICIT CODE IN THEMODELS.
7.3 Services Warranty. Swivel warrants that it shall perform the Services in a good and workmanlike manner at the applicable industry standards, and that such Services will be performed by qualified individuals. If Swivel fails to perform its services in a good and workmanlike manner, then Customer’s sole and exclusive remedy with respect to such failure, and Swivel’s sole obligation, WILL be to correct any deficiency in the nonconforming services at no additional cost to Customer.
7.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE MODELS AND SERVICES ARE PROVIDED “AS IS,” AND SWIVEL does not warrant that the MODELS will be free from defects or errors, THAT IT WILL BE SECURE, or that the MODELS ARE designed to meet all of Customer’s business requirements, including the operation of the business. Swivel FURTHER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, ACCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADETO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THEMODELS ARE DELIVERED WITH THE EXPLICIT UNDERSTANDING AND AGREEMENT OF CUSTOMER THAT ANY ACTION TAKEN OR EXPENDITURES MADE BY CUSTOMER BASED ON ITS EXPECTED USES OF THE MODELS, OR BY OTHERS RELYING ON USE OF THE MODELS, WILL BE AT CUSTOMER’S OWN RISK AND RESPONSIBILITY AND CUSTOMER SHALL HAVE NO CLAIM AGAINST SWIVEL AND HEREBY RELEASES SWIVEL FROM ANY LIABILITY AS A CONSEQUENCE THEREOF.
Article VIII
INDEMNIFICATION; LIMITS ON REMEDIES AND LIABILITY
8.1 Indemnification by Swivel. Subject to the terms of this Agreement, Swivel shall defend, indemnify and hold harmless Customer and its Affiliates, officers, directors and representatives from and against any third party Claims arising out of or relating to: (a) the gross negligence, fraud and willful misconduct of Swivel, (b) any breach by Swivel of the representations or warranties set forth in Section 7.1, or (c) any claim by a third party that use of the Deliverables in accordance with this Agreement infringes a valid patent or copyright in the United States or misappropriates a trade secret in the United States. Notwithstanding the foregoing, Swivel shall have no liability or obligation to Customer, its Affiliates or any other Person under this Section 8.1 to the extent a Claim arises from (i) the use of the Deliverables in connection or in- combination with equipment, devices or software not supplied by, approved by,or under the express direction of Swivel, (ii) the use of the Models contrary to the Documentation or this Agreement, or (iii) unapproved modifications of the Models by or on behalf of Customer without the express prior consent of Swivel.
8.2 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Swivel and its Affiliates, officers, directors and representatives from and against any third party Claims arising out of or relating to: (a) the gross negligence, fraud or willful misconduct of Customer, (b) any breach by Customer of its representation or warranties under Section 7.1, or (c) Customer’s breach of Article II, Section 10.2 or any other use of the Models other than as expressly set forth in this Agreement, or (d) any claim by a third party that the Customer Materials infringe a valid patent,trademark or copyright in the United States or misappropriate a trade secret in the United States.
8.3 Indemnification Procedures. Each Party’s indemnification obligations are conditioned upon the following: (a) the indemnified party shall provide prompt written notice of any claim to the indemnifying party, provided that any failure to provide such prompt written notice will only relieve the indemnifying party of its obligations to the extent its ability to defend such claim is materially prejudiced by such failure, (b) the indemnifying party shall not consent to entry of any judgment or admission of any liability of the indemnified party without the prior written approval of the indemnified party, and (c) the indemnified party shall cooperate in the defense of any claim as reasonably required by the indemnifying party at the indemnifying party’s sole expense. It is acknowledged and agreed that nothing contained herein (i) shall be considered a waiver by either Party of any remedy or right, in law or equity, all of which are expressly reserved without prejudice, and (ii) prevents the indemnified party from obtaining separate counsel at such party’s sole expense.
8.4 Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER Article VIII, OR ARISING OUT OF EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER Article VI, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,PUNITIVE, EXEMPLARY, RELIANCE, OR COVER DAMAGES, INCLUDING LOSS OF PROFITS,REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING OUT OF EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER Article VIII, OR ARISING OUT OF EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER Article VI, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SWIVEL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH LIABILITY. SWIVEL’S TOTAL AGGREGATE LIABILITY UNDER SECTION 8.1(C) IS LIMITED TO THREE TIMES THE FEES PAID BY CUSTOMER TO SWIVEL FOR THE APPLICABLE DELIVERABLE. FOR CLARITY, A SECURITY BREACH IS NOT CONSIDERED A BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER Article VI. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT(INCLUDING SOLE OR CONCURRENT NEGLIGENCE), BY OPERATION OF LAW OR OTHERWISE. LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Article IX
TERMINATION
9.1 Term. The term of this Agreement will commence on the date set forth in the Order Form and continue for the period set forth in the Order Form (the “Term”), unless terminated earlier in accordance with Section 9.2.
9.2 Term. The Agreement or applicable Order Form may be terminated under the following scenarios:
(a) By Swivel, thirty (30 days after Swivel gives Customer notice of Customer's material breach of any provision of this Agreement or an Order Form (other than Customer's breach of its obligations under Section 2.5 or Section 10.2, which breach will result in immediate termination), unless Customer has cured such breach during such 30-day period;
(b) By Customer, thirty(30) days after Customer gives Swivel notice of Swivel’s material breach of any provision of this Agreement or Order Form, unless Swivel has cured such breachduring such 30-day period;
(c) Immediately by Swivel if any of the following events, which exist as to Customer, remain uncured for more than sixty (60) days: (i) entry of an order for relief under Title 11 of the United States Code, (ii) the making of a general assignment for the benefit of creditors, (iii) the appointment of a general receiver or trustee in bankruptcy of Customer’s business or property,or (iv) action under any state insolvency or similar law for the purpose of bankruptcy, reorganization, or liquidation, unless within the specified 60-day period, Customer, its receiver, or its trustee in bankruptcy provides to Swivel adequate written assurances, reasonably acceptable to the Swivel, of Customer’s continuing ability and willingness to fulfill all its obligations under this Agreement; or
(d) Immediately upon written agreement of Swivel and Customer.
9.3 Effect of Termination. Upon any expiration or termination of this Agreement or applicable Order Form, Customer shall promptly pay all fees incurred prior to the expiration or termination date, including for Services performed through the expiration or termination date. Upon termination of this Agreement or an Order Form pursuant to Section 9.2(a), Customer shall promptly cease using the applicable Deliverables and, at Swivel’s request,return or permanently delete such Deliverables.
Article X
MISCELLANEOUS
10.1 Use of Subcontractors. Swivel may subcontract or delegate any Services to any third party without Customer’s prior written consent, provided that Swivel shall remain responsible for the performance of all personnel andany such subcontractors.
10.2 Export Patrol. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of certain materials. Accordingly, Customer shall not export, directly or indirectly, all or part of the Deliverables, any product or other materials derived from the Deliverables,to any country without the appropriate United States and/or foreign government licenses. Customer shall not export(including via the Internet) the Deliverables to any country subject to U.S.embargo.
10.3 Anti-Bribery Laws. Each Party represents, warrants, and covenants that, in connection with this Agreement and the business resulting therefrom, it is knowledgeable about and will comply with all applicable laws relating to anti-bribery or anti-money laundering laws. Nothing in this Agreement requires a Party to perform any part of this Agreement or take any-actions if, by doing so, the Party would not comply with anti-bribery laws,anti-money laundering laws or any other applicable laws.
10.4 Assignment. Neither Customer nor Swivel may assign or transfer this Agreement (by operation of law or otherwise) without the other Party’s prior written consent except that either Party may, without the consent of the other Party, (a) assign this Agreement to an acquirer of all or substantially all of a Party’s assets or stock, or (b) assign its rights and obligations hereunder to any Affiliate, solong as the assignee under the scenarios in (a) and (b) assumes the obligations of the assigning Party in writing. This Agreement is binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and permitted assigns.
10.5 Relationship of Parties. Each Party is acting only as an independent contractor to the other Party. Notwithstanding any provision of this Agreement to the contrary, this Agreement establishes and will only be construed as establishing a contract between unrelated business entities and does not and will not be deemed to create a partnership, joint venture, agency or any other type of joint relationship.
10.6 Notice. Any notice required or permitted by this Agreement will be in writing and in English and will be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally, (b) by overnight courier upon written verification of receipt, (c) by certified or registered mail, return receipt requested, upon verification of receipt, or (d) by electronic mail. Notice will be sent to the addresses set forth in the Order Form or such other address as either Party may specify in writing. Notices related to any breach of this Agreement must be sent by (a), (b) or (c) only.
If to Swivel:
[●]
Swivel,Inc.
7500 Rialto Blvd, Suite 1-250
Austin,TX 78735
Email: [●]
10.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid,unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on an amendment, the invalid term,condition, or provision will be severed from the remaining terms, conditions,and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
10.8 No Third-Party Beneficiaries. Nothing contained in this Agreement is intended to confer upon any Person (other than the Parties hereto and the Persons specifically identified as indemnitees hereunder) any rights, benefits or remedies of any kind or character whatsoever, and no Person will be deemed a third-party beneficiary under or by reason of this Agreement.
10.9 Amendment. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the Parties to this Agreement.
10.10 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be inwriting to be effective. Failure,neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.
10.11 Entire Agreement. This Agreement (including any Schedules,Exhibits, and Order Form hereto) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the Parties with respect to the subject matter hereof. There are no representations, understandings or agreements relating to this Agreement that are not fully expressed in this Agreement.
10.12 Governing Law;Exclusive Jurisdiction. This Agreement will be governed and construed in accordance with the laws of the State of Texas, USA, without regard to its principles of conflicts of laws. Any claim arising under this Agreement will be prosecuted exclusively in a federal or state court of competent jurisdiction located within Austin, Texas, USA, and the parties consent to the jurisdiction of such court and to the service of process by mail. This Section does not preclude any jurisdiction necessary for resolution of any claim arising under this Agreement under the Defend Trade Secrets Act.
10.13 Force Majeure. Neither Party shall be responsible for any delay in performing or failure to perform due to circumstances beyond its reasonable control, including acts of God, acts of terrorism, war, riot,embargoes, acts of civil or military authorities, epidemic, fire, flood,earthquake or labor strike (“Force Majeure Event”). The Party claiming the benefit of a Force Majeure Event shall promptly notify the other party of the occurrence and the anticipated duration of such Force Majeure Event, and shall promptly resume performance at the end of such Force Majeure Event. In the event a Force Majeure Event continues for a period of twenty (20) Business Days, either Party may terminate this Agreement by providing written notice to the other Party. Notwithstanding the foregoing, the obligation to pay amounts due and owing under this Agreement that arose prior to the occurrence of the Force Majeure Event will not be extinguished or delayed by virtue of the Force Majeure Event or the termination of this Agreement by reason thereof.
10.14 Survival. The following provisions of this Agreement survive the termination or expiration of this Agreement: Article I, Sections 2.1 – 2.2, Sections 2.4 – 2.6, Section 4.3, Article VI, Section 7.4, and Article X, and, solely with respect to claims arising prior to the effective date of termination, Section 7.1, Article VIII, and Section 9.3 will so survive.