Customer Agreement

Last updated date: 07.12.2016

This Agreement (the “Agreement”) is between the customer (herafter known as “Customer” or “You”) and Sword Services SA, Rue des Baumettes 19, 1020 Renens (hereafter known as “Sword” or “We”). The Agreement covers the use of and access by Customer and End-Users whether in connection with a paid subscription (initial purchase or renewal) to the Service or a free trial of the Service.

Sword may modify this Agreement from time to time, subject to the terms in Section “Changes to this Agreement” below. This Agreement includes our Support Policies.

By accepting this Agreement, or by accessing or using the Service, or authorizing or permitting a End-User to access, use or administer the Service, Customer agree to be bound by this Agreement. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS OUR SERVICES THROUGH YOUR ACCOUNT TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Definitions

The following terms have the following meanings:

Account: means a BizDock or DevDock account created by Customer to subscribe to the Service and thus provide the access to End-Users to the Service.

Documentation: means any written or electronic documentation, images, video, text, web site or sounds specifying the functionalities of the Service provided or made available by Sword to Customer or End-Users.

End-User: means an individual using the Service. End-Users are under the responsibility of Customer.

Planned Downtime: period during which activities are entertained by Sword and the Service is partly or fully unavailable.

Service: means any software, web sites, tools and Documentation provided by Sword to Customer and End-Users. Any new or modified features added to or augmenting the Service or updates or enhancements to the Service (“Updates”) are also subject to these terms. We reserve the right to deploy Updates of the Service at any time. The condition of use of the Service is defined by a Service plan.

Service plan : means conditions of use of the Service (fees, number of end-users, feature, technical or operational scope) applicable to Customer and End-Users.

Subscription Term: means the period during which Customer has agreed to subscribe to the Service.

Subscription Charges: fees requested by Sword to customer to access the Service within the Subscription Term.

Access to the Service

During the Subscription Term and subject to compliance by Customer and End-Users with these Terms, Customer and End-Users have the limited right to access and use the Service consistent with the subscribed Service Plan for Customer internal business purposes.

Customer agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized End Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party other than End Users; © modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Sword, (e) use the Service in any unlawful manner, including but not limited to violation of any person's privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person's intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (l) try to use, or use the Service in violation of these Terms.

Customer is responsible for compliance with the provisions of these terms by End Users and for any and all activities that occur under Your Account, as well as for all Your data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes, subject to any limitation on the number of individual End-Users available under the Service Plan for which You subscribed. You agree and acknowledge that each End-User will be identified by a unique username and password (“Login”) and that an End-User Login may only be used by one (1) individual. You will not share an End-User Login among multiple individuals. You and Your End-Users are responsible for maintaining the confidentiality of all Login information for Your Account and the Service you subscribed to and You agree to immediately notify Sword of any unauthorized use of which you become aware.

Sword reserves the right, in Sword's reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (see Scheduled Maintenances); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You or End Users.

Subscription termination or cancellation

No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled.

Sword reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or End Users' rights to access and use the Service, and remove, disable and discard any of Your Data if We believe that You or End Users have violated these terms. Unless legally prohibited from doing so, Sword will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Sword shall not be liable to You, End Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You or End Users may be referred to law enforcement authorities at Our sole discretion.

Subscriptions renewal

Either You or Sword may elect to terminate Your Account and subscription to the Service as of the end of your current Subscription Term by providing notice, in accordance with these terms, on or prior to the date: * thirty (30) days preceding the end of such Subscription Term if the Subscription Term is lower than 6 month; * three (3) months preceding the end of such Subscription Term if the Subscription Term is longer than 6 months but lower than one year; * six (6) months preceding the end of such Subscription Term if the Subscription Term is equal or longer than one year.

Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the expiring Subscription Term (but not longer than one year). Unless otherwise provided for in any Form, the Subscription Charges and conditions (e.g. Customer Agreement) applicable to Your subscription to the Service for any such subsequent Subscription Term shall be the standard Subscription Charges and conditions (e.g. Customer Agreement) for the Service Plan as of the time such subsequent Subscription Term commences.

Intellectual property rights

“BizDock” and “DevDock” are brands of Sword Services SA. The rights granted to Customer and End Users to use the Service under this Agreement do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly permitted herein, all rights, title and interest in and to the Service and all hardware, software and other components of or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to Sword. Sword shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from Customer or End Users.

Security

Sword implements security procedures to help protect Your Data from security attacks. However, You understand that use of Service necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.

Responsibility for Your Data

Your Data. “Your Data” means any data, content, images or other materials of any type that you upload, submit or otherwise transmit to the Service. You will retain all rights on Your Data. Subject to the terms of this Agreement, you hereby grant to Sword the right to

  • collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the Service and
  • access your Account or instance solely in order to respond to your support requests.

Indemnity for Your Data. You will defend, indemnify and hold harmless Sword from and against any loss, cost, liability or damage, including attorneys’ fees, for which Sword becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Service in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.

Support and Maintenance

Sword will provide the support and maintenance for the Service as described in the Support Offer during the period for which you have paid the applicable fee. The Support Policy may be modified by Sword from time to time to reflect process improvements or changing practices. Support and Maintenance for the Service includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use the Service. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Service that we make commercially available. Support Policies does not cover softwares provided as part of the Service that are not covered by Sword intellectual property. Sword would raise and follow any issue with its official maintainer (community…) and ensure any fixe is properly integrated once officially released.

Relationship of the parties

The parties are independent contractors. This Agreement do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

Warranty and Disclaimer

Warranty Disclamer. ALL PRODUCTS ARE PROVIDED “AS IS,” AND SWORD AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. SWORD SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SWORD. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SWORD NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

Dispute Resolution

Arbitration

In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Lausanne (Switzerland). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be French.

Governing Law - Jurisdiction

All disputes arising from the interpretation or the performance of the present Agreement and/or an order shall be exclusively governed by Swiss Law. The legal venue shall be Lausanne.

Changes to the Agreement

We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you. If we modify the Agreement during your Support and Maintenance term, the modified version will be effective upon your next renewal of the Support and Maintenance term. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

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