Terms and Conditions of Service for Swarm LLC, (“Swarm”).
Upon subscribing to Swarm services, you agree to pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The Service Fees include charges for the use of the Swarm service, and any additional fees for add-on services not included in the base price. Unless otherwise stated, all fees are quoted in U.S. Dollars.
You are responsible for paying all taxes levied in connection with your use of the services, including sales, use, value-added, property, and similar taxes. Swarm will make all reasonable efforts to accurately calculate taxes; however, you are ultimately responsible for paying taxes applicable to your jurisdiction.
For the purposes of this Agreement, the term "Services" provided by Swarm shall encompass all software, platforms, tools, features, capabilities, and support offered to Users, regardless of whether such offerings are traditionally characterized as tangible or intangible goods, products, or services. Swarm may, at its discretion, use the terms "Services" and "Products" interchangeably to refer to its suite of solutions, including but not limited to software as a service (SaaS) applications, digital platforms, and any related support or maintenance services provided. This usage reflects the integrated nature of Swarm's offerings, which may consist of both the provision of digital products and the accompanying services necessary for their optimal use.
1.1 Service Fees: Fees associated with the ongoing use of Swarm ("Service Fees") are also non-refundable and fully earned Service Fees are charged in advance and are based on the service package selected by you. Given the nature of digital service delivery and the immediate access to the service's features and capabilities upon activation, all Service Fees are non-refundable. This includes fees for the initial term and any subsequent renewal terms.
1.2 Integration Fees: The fees charged for the initial setup and integration of the Swarm service into your system or operations ("Integration Fees") are non-refundable and fully earned. Integration Fees cover the cost of the proprietary resources, labor, and technology required to configure and deploy the Swarm service according to your specifications and needs. Once paid, these fees shall not be subject to refund, regardless of the extent of use of the Swarm service.
1.3 Late Fees: If any fee due under these Terms is not received by Swarm within fifteen (15) days after the due date, a late payment fee may be applied. The late payment fee will be equivalent to 5% of the overdue payment amount, which represents a fair and reasonable estimate for the damages Swarm would suffer due to such late payment. This late fee is not intended as a penalty but as a charge to compensate Swarm for the delay in receiving the due payment. In the event of service suspension due to non-payment, a reasonable compliance restoration fee may be assessed for the restoration of service, which must be paid in full prior to the reinstatement of your access to Swarm's services.
You shall enter into a commitment for the Initial Term of the service upon your acceptance of these Terms and Conditions. Before the end of the Initial Term, Swarm may notify you of your upcoming renewal. Unless you provide a written notice of non-renewal, the subscription will automatically continue under the then-current terms.
The license provided to you under these Terms and Conditions is solely for the purpose of accessing and using Swarm in accordance with the agreed-upon services. This license is non-exclusive, limited, non-transferable, and revocable. You are authorized to extend these usage rights to your affiliates and subsidiaries provided they comply with all applicable provisions of this agreement.
3.1 Intellectual Property Protection As a user of Swarm services, you are prohibited from copying or installing any part of our services onto any network server not explicitly designated for use within the premises or virtual environments outlined in your service contract with Swarm. Except as expressly permitted by this Agreement, you shall not make copies of any portions of the services, nor engage in disassembling, decompiling, or reverse-engineering the services. The rights granted under this Agreement do not extend to sublicensing, renting, or lending any service, nor do they permit the creation of derivative works based on the service, unless explicitly stated otherwise herein. Swarm disclaims any liability or responsibility for conflicts or compatibility issues that may occur due to the use of the services with other equipment or software not provided by Swarm.
Swarm does not warrant that the services will be uninterrupted, timely, secure, or error-free. Planned system downtime will be communicated in advance, and Swarm will take reasonable steps to minimize any other disruptions to service. In the event of system failure, Swarm's liability will be limited to service restoration as soon as reasonably possible. Swarm's service delivery relies on various third-party services, including but not limited to, cloud hosting platforms, data storage, and processing services. While Swarm endeavors to select reputable and reliable third-party providers, Swarm shall not be held responsible for any interruption, malfunction, downtime, or other failures of any third-party services that impact the availability or functionality of Swarm's services. In the event of a downstream outage or issue due to third-party service failure, Swarm will work diligently to restore service but disclaims any liability for disruptions outside of our direct control.
All rights, title, and interest in and to the Swarm service, including all intellectual property rights therein, are and will remain the exclusive property of Swarm. You are entrusted with protecting the confidentiality of any proprietary technology or information provided to you through your use of Swarm.
5.1 Innovations in Service Utilization Any and all ideas, concepts, techniques, or materials developed in the course of using Swarm, whether they pertain to the software, system processes, user interface designs, algorithms, or data processing ("Innovations"), regardless of whether they can be legally protected as intellectual property and irrespective of whether they are conceived or created by you, your owners, employees, or contractors, must be promptly disclosed to Swarm.
Such Innovations will be considered the sole and exclusive property of Swarm, deemed part of the System and the proprietary Intellectual Property, and recognized as works made-for-hire for Swarm. If any Innovation does not qualify as a work-made-for-hire, you hereby assign and transfer all right, title, and interest in such Innovations to Swarm by this Section. You further agree to execute (and to ensure your owners, employees, and contractors execute) any and all documents that Swarm may reasonably request to assert its ownership rights or to secure intellectual property rights and protections regarding such Innovations.
Swarm and its affiliates are under no obligation to offer any form of compensation to you or any third party with respect to the Innovations. You are prohibited from utilizing any Innovation in the operation of your business, with Swarm, or in any other manner without the express prior written consent of Swarm.
5.2 Confidentiality Assurance You acknowledge that in the course of your subscription to and use of Swarm, you may be exposed to confidential information related to Swarm's business, technology, and related affairs. You agree to maintain the strict confidentiality of all such information, and not to disclose or use such information for any purpose outside the scope of these Terms and Conditions.
You are responsible for the accuracy, quality, and legality of your data and the means by which you acquired your data. Swarm will implement reasonable security measures consistent with prevailing industry standards to protect data stored on its servers. You agree to maintain the necessary network access, connections, and equipment necessary to access Swarm services.
Swarm may, at its sole discretion, terminate your access to Swarm services without refund if you breach any provision of these Terms and Conditions, including non-payment of fees owed, or if your use of Swarm services is deemed to be harmful to Swarm or its other customers.
This agreement constitutes the entire agreement between the parties with respect to Swarm services and supersedes all prior or contemporaneous understandings regarding such subject matter. If any provision of this agreement is found to be invalid by a court of competent jurisdiction, the remaining provisions will remain in full force and effect.
You agree to indemnify and hold Swarm, its licensors, and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from any claim or demand made by any third party due to or arising out of your use of Swarm, or the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity.
Swarm shall not be deemed in breach of these Terms and Conditions if there is any total or partial failure of performance by it of its duties and obligations under this agreement occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy, or other supplies, labor disputes of whatever nature, and any other reason beyond the control of Swarm.
Swarm reserves the right, at its sole discretion, to amend, modify, add, or remove portions of these Terms and Conditions at any time. It is your responsibility to check these Terms and Conditions periodically for changes. Continued use of the Swarm service following the posting of changes will mean that you accept and agree to the changes.
All notices to you shall be in writing and shall be made either via email or conventional mail. You may give notice to Swarm at any time via email or by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail to Swarm at its registered address. Email notices shall be sent to [email protected]. Conventional mail notices shall be sent to Attention: Swarm 300 N New York Ave #278 Winter Park, FL 32790.
These Terms and Conditions shall be governed by the laws of the State of Florida, without regard to its conflict of laws principles. Any disputes under these Terms shall be handled by a competent court in the jurisdiction where Swarm is headquartered. You agree to comply with all applicable export and import laws and regulations in your use of Swarm.
Any disputes arising out of or in connection with these Terms and Conditions shall first be attempted to be settled through mediation, to be held in the State of Florida. If the dispute cannot be settled through mediation, then the parties agree to submit to the exclusive jurisdiction of the courts of the State of Florida.
14.1 Governing Law: This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, without regard to its conflict of law provisions.
14.2 Waiver of Jury Trial: Both you and Swarm irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement or the services provided under this Agreement.
14.3 Waiver of Class Actions: The parties agree that any proceedings to resolve or litigate any dispute will be conducted solely on an individual basis. Neither you nor Swarm shall seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity.
14.4 Waiver of Punitive Damages: Each party hereby waives to the fullest extent permitted by applicable law any right to or claim for any punitive, exemplary, incidental, indirect, special, consequential, or similar damages against the other party arising out of this Agreement.
14.5 Non-Exclusivity of Remedies: Except as explicitly provided herein, particularly in Section 17.4 (Waiver of Punitive Damages), the assertion of any right or remedy under this Agreement does not preclude the assertion of any other rights or the seeking of further remedies under this Agreement or under any applicable law.
14.6 Time Limitation on Claims: Any claim arising out of or related to this Agreement, except for claims related to non-payment or underpayment by you, must be filed within one (1) year after the aggrieved party knew or should have known of the claim; otherwise, the claim is permanently barred. This clause shall not limit the statutory period for claims involving allegations of fraud or willful misconduct by Swarm.
In any mediation, litigation, arbitration, or dispute arising under or relating to these Terms and Conditions, each party shall be entitled to recover reasonable attorney's fees, mediation costs, and litigation costs.
You may not assign these Terms and Conditions, in whole or in part, without the prior written consent of Swarm. Swarm may assign these Terms and Conditions, in whole or in part, at any time without notice.
These Terms and Conditions may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument.
This Agreement may be supplemented by one or more Order Forms, which shall serve as an addendum to this Agreement. Each Order Form is hereby incorporated by reference and made a part of this Agreement. The terms and conditions of any such Order Form Addendum shall prevail in the event of any inconsistency with the Terms of Service, except to the extent that the Order Form explicitly states that the Terms of Service shall take precedence. All Order Forms are subject to acceptance by Swarm, a Swarm company, and shall become binding once accepted as specified in the Order Form Addendum. Any Order Form Addendum shall detail specific services, fees, and obligations pertinent to the services provided by Swarm and will be considered final upon the mutual agreement of the parties as evidenced by their respective signatures or by the initiation of service provision by Swarm, whichever occurs first.
Swarm reserves the right, at its sole discretion, to modify or replace any part of these Terms and Conditions. It is your responsibility to check this agreement periodically for changes. Your continued use of or access to the Swarm service following the posting of any changes to these Terms and Conditions constitutes acceptance of those changes. Swarm may also, in the future, offer new services and/or features through the Swarm platform (including the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this agreement.
These Terms Were Updated On: January 14, 2024
