Terms of Service

Date: January 10, 2017

Please read these terms of service ("TOS") carefully. They constitute a legally binding agreement and contain terms limiting Swrve’s liability to you, exclusions of certain warranties, and terms relating to access to and use of data collected and analyzed by the Swrve Service.

BY CLICKING THE "I ACCEPT" BUTTON, OR SIGNING OUR COMMERCIAL TERMS, OR COMPLETING THE REGISTRATION PROCESS, AND/OR USING THE SWRVE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS.  If you are using the Swrve Service on behalf of a company, you must have the authority to bind that company to these TOS.  If you are not willing to be bound by these TOS, you should not complete the registration process and may not use the Swrve Service.

We reserve the right to change or modify any of these TOS at any time, in our sole discretion. Acceptance of such changes or modifications is constituted by either: (i) continued use of any part of the Swrve Service thirty (30) days after the modified TOS have been posted to the Swrve website or (ii) your indication of agreement to the updated terms, via click-through or otherwise.

1. THE BASICS

Swrve: 

  • Within North America, the Swrve Service is made available by Swrve New Media Inc., a Delaware corporation with offices at 55 Stockton Street, Suite 400, San Francisco, CA 94108, USA.
  • Outside of North America, the Swrve Service is provided by New Game Technologies Limited t/a Swrve New Media UK, a company organized under the laws of the United Kingdom with it registered offices at Eagle House, 167 City Road, London, England EC1V 1AW. 

Definitions: 

  • In these TOS the Swrve entity above will be referred to as “Swrve”, “us” or “we”.  You and/or your company will be referred to as “Customer” or “you”. 
  • Definitions for capitalized terms used in these TOS and not otherwise defined in the text are set out in the attached Appendix 1: Glossary. 

2.  ACCESS

Use of the Swrve Service:

  • These TOS apply to your use of Swrve Service.  The Swrve Service may be used by you for the purposes of content delivery, advertising and feature management, campaign tracking, behavioral and location targeting, in-app messaging, push notifications, A/B testing and analytics for Customer App(s) according to the Swrve Edition to which you have subscribed and the Add-On Services you have ordered.  
  • Use of the Swrve Service is subject to the Service Limits at https://www.swrve.com/company/service-limits.  Exceeding the Swrve Service Limits may result in Swrve suspending or terminating your ability to access the Swrve Service and/or these TOS.  Additionally, Swrve will not be obligated to support any issues that arise due to usage outside of the Service Limits and any service level guarantees will be null and void.  Although the Swrve Service will usually adjust to meet spikes in usage, you agree to use reasonable efforts to provide Swrve with at least thirty (30) days prior notice before the launch of a Customer App and/or any event reasonably anticipated to lead to a spike in monthly active users, so that Swrve can properly allocate resource to support you.
  • Programmatic or automated access to the Swrve Service is limited to the official Swrve API as indicated in the product documentation (available at docs.swrve.com).  The use of manual or automated software, script robots, other means or processes to access the Swrve Service outside of the official Swrve API is prohibited, without express written permission from Swrve.

License Grants:

  • Subject to you abiding by the terms and conditions set forth in these TOS and any applicable Commercial Terms, and in consideration thereof, we hereby grant you a non-exclusive, non-transferable, worldwide license for the Term to (a) make calls to the Swrve API and/or (b) install, use and embed the Swrve SDK and Integration Code (in executable form only) into your application, each for the purposes of using the functionality offered by the Swrve Service, in respect of the Swrve Edition to which you have subscribed, and any Add-On Services you may have ordered.
  • Subject to payment of the fees set out in the applicable Commercial Terms and/or SOW, Swrve grants you a royalty-free, non-transferable, non-exclusive worldwide license for the Term to use, copy, modify and distribute internally any Swrve Work Product delivered pursuant to a professional services engagement, solely for use in your facilities, in conjunction with the Customer App(s).  The foregoing license grant to the Work Product is dependent on you having an active license to the Swrve Service.

Use of Sample Content: 

  • Certain images, photos and other copyrighted materials may be provided via the Swrve SDK or “Conversations” feature (collectively the “Sample Content”).  The Sample Content has been licensed for Swrve’s use only.  If you wish to re-use such Sample Content, you are solely responsible for obtaining the rights to use the Sample Content from its owner.  For the avoidance of doubt, use of the Sample Content is not required for normal operation of the Swrve Service, and is provided by way of example only.

Log-ins:

  • Access to the Swrve Service is limited to those of your employees and contractors who have been issued user names and passwords by you or us.   The foregoing notwithstanding, user additional names and passwords will not be necessary if Swrve has enabled single sign on for your organization.
  • Your Swrve System administrator may also ask us (via email) to create log-ins for third party users who are assisting you with application development and maintenance. Administrator users can set access permissions for other users. 
  • You should ensure that details of your administrator users are kept up to date and that you notify us if your administrator users are changed or leave your company. 
  • You are responsible for any activity by users issued under your account. You must notify Swrve immediately of any unauthorized use of any password or account or any other known or suspected breach of security. 
  • Where Swrve is provided with access to Third Party Services to facilitate integration, you are responsible for maintaining the security of your Third Party Services account and ensuring that Swrve has the requisite permissions to access the account from the End User and the provider of the Third Party Services.

Reports:

  • Reports may be distributed within your organization for the purpose of analyzing Customer App(s).  Any use of Reports outside of your organization must be purged of any Swrve proprietary information

3. SERVICE UPDATES

  • From time to time we may update the Swrve Service and add new or different features and functionality. Provided you are in compliance with these TOS, you will be granted access to the updated versions of features to which you have subscribed. 
  • Optional or new features and functions may be subject to additional fees. We may also adjust or remove certain features from time to time.

4. FEES

  • Whether fees are payable by you will depend on whether you have a temporary or a commercial license to use the Swrve Service. 
  • For commercial clients, you will have entered into written Commercial Terms, which outline the access fees payable and other commercial terms applicable, including the Swrve Edition to which you have subscribed. The Commercial Terms are in addition to these TOS and to the extent there is a conflict, the Commercial Terms will control.  
  • You agree to pay any fees free of any set off or counterclaim. 

5. YOUR RESPONSIBILITIES 

Respect End User Data Privacy: You are responsible for ensuring your compliance with the following:

  • You may not use the Swrve Service to breach any right of privacy, publicity, confidentiality or right under applicable consumer or data protection laws, wherever and howsoever arising; 
  • You are responsible for complying with all applicable data protection laws and regulations, and where necessary ensuring that you have provided all notices, and obtained all rights, permissions, and consents for Swrve (and where applicable its subcontractors) to process, access, use and display End User data for the purpose of providing the Swrve Service under the terms of this Agreement, as requested by you;
  • You may not process Personal Data using the Swrve System, without putting Swrve on notice of such processing as required in Appendix 1 (Data Protection);
  • You may not process sensitive personal information, including without limitation social security numbers, individually identifiable health or health insurance information (including national health id numbers where applicable), bank account information, or credit card information;

Don’t Be Mean or Lie:  Through your use of the Swrve Service, you may not, directly or indirectly, post, send, email, or otherwise transmit (whether intentionally, accidentally or maliciously) any of the following (all of which are strictly prohibited by this Agreement): 

  • content that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, or racially or ethnically objectionable material or message;
  • content that misleads End Users by impersonating any person or entity or otherwise misrepresenting your affiliation with a person or entity; 
  • any content that contains falsified contact information or subject line, does not contain an unsubscribe function or that lacks detailed “contact us” information including your physical address for End Users to contact you;
  • In the case of e-mail campaigns using Third-Party Services, content that contains falsified contact information or subject line, does not contain an unsubscribe function, or that lacks detailed “contact us” information including your physical address for End Users to contact Customer;

Don’t Break the Law: Through your use of the Swrve Service, you may not, directly or indirectly, post, send, email, or otherwise transmit (whether intentionally, accidentally or maliciously) any of the following (all of which are strictly prohibited by this Agreement): 

  • content or material that you don’t have the right to transmit or any material that infringes any Intellectual Property Right of any third party; 
  • material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, harm, or otherwise limit the functionality of any computer software, hardware, or telecommunications equipment; 
  • material in any manner that violates applicable local, state, national or international laws, including without limitation: 
    • any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” 
    • “unsolicited commercial communications’ including by email or SMS or other form of communication prohibited by the CAN-SPAM Act of 2003, the anti-spam laws of the countries End Users live in, 
    • COPPA, CalOPPA, or the e-Privacy Directive (Directive 2002/58/EC as amended by Directive 2006/24/EC and 2009/136/EC), or 
    • any other unauthorized forms of solicitation, as applicable.

Don’t Violate Swrve’s Rights: Except as expressly authorized by this Agreement, you may not: 

  • copy, modify or create derivative works of the Swrve Service; 
  • license, sublicense, sell, rent, lease, resell, transfer, assign or otherwise make available to any third party, the Swrve Service or any part thereof; 
  • publicly perform, display, disclose or provide any third party with access to the Swrve Service, including without limitation the Swrve API, except as permitted in this Agreement; 
  • distribute the Swrve Integration Code, in any form other than executable, object code form, compiled into the Customer App(s); 
  • use Swrve Event APIs and/or A/B test APIs directly from your server (as opposed to via the Swrve SDK) without Swrve’s permission and providing an administrator contact to whom Swrve can escalate issues that may arise due to such use.
  • disclose the results of any quality, benchmark, or performance testing of the Swrve Service to any third party, without Swrve’s prior written permission; 
  • conduct security scans or code reviews of the Swrve Service, without Swrve’s prior written permission and subject to appropriate agreed prior notice.
  • interfere with the Swrve Service or disobey any requirements, procedures, policies or regulations of networks connect to the Swrve Service; 
  • attempt to gain unauthorized access to the Swrve Service or its related systems or networks; 
  • reverse engineer or access the Swrve Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Swrve Service; or 
  • work around any limitations or permissions of the Swrve Service;

You agree to promptly notify your customer service representative at Swrve of any actual or suspected unlawful use of the Swrve system by or through Customer, including without limitation, by data breach or intrusion.  

6.  CUSTOMER SUPPORT 

  • Customer technical support is provided as part of our Customer Success Packages.  Descriptions of the current Customer Success Packages and details regarding the provision of technical support can be found at https://www.swrve.com/company/service-descriptions.  
  • All technical support will be performed at Swrve’s offices during Swrve’s normal business hours.
  • Questions regarding technical support and support queries may be logged via email to support@swrve.com or directly via the Swrve Support Portal. 
  • Pursuant to a Customer Success Package, Swrve will provide technical support for the Swrve Service, including any PST delivered by Swrve.  However, Swrve will not support changes made by you or on your behalf (other than by Swrve) to the Swrve SDK or Integration Code.

7.  PROFESSIONAL SERVICES & TRAINING

Statement of Work:

  • Professional Services & Training (“PST”) will be carried out on a time and materials basis in accordance with a mutually agreed written statement of work (“SOW”) or pursuant to Commercial Terms signed by the parties.  Any reference to PTOS shall be deemed to be a reference to this Section 7 of the TOS. 
  • Your requirements may vary during the course of performance of the PST, and accordingly, review and revision of a SOW may be required.  Any such revision and review may result in additional charges.  All changes to existing SOWs will be in writing or agreed to expressly via email.
  • All work is performed on the basis of the fee structure set forth on applicable Commercial Terms or SOW. Any scheduled performance dates and times are estimates only. It is understood between the parties that delay in performance of an assigned task under a SOW by the assigned party shall give rise to the right in the other party to push back the directly-related and dependent events of that SOW to reasonably accommodate for the delay.
  • Swrve may choose to change the personnel assigned to your account or delivering PST at any time for any reason.
  • PST are non-cancellable and fees are non-refundable.  PST must be used or will expire on the earlier of (a) the period indicated in the SOW or Commercial Terms as the “Expiration Period” or (b) upon the expiration or earlier termination of your license to the Swrve Service.  
  • Unless the context provides otherwise, each reference in these TOS to “Swrve Service” also refers to the Swrve PST.

Deliverables:

  • PST are performed on a time and materials basis.  If a professional services engagement includes deliverables, we expect that those deliverables will be complete in with the “Delivery Period” indicated in the SOW or on the Commercial Terms.  If we cannot complete the deliverables because of missing resources, technical limitation or other items we need from you, the PST will be considered complete as is.  However, if we cannot complete the deliverables because of missing resources, technical limitations or other items, you need from us, we will extend the Delivery Period, at our sole discretion, to allow us to complete the PST.

On-Site Performance:

  • Swrve PST is generally performed remotely at Swrve’s office, unless otherwise agreed in writing.
  • In the event of performance of Swrve PST, at Customer’s site or a site designated by Customer, Customer shall reimburse Swrve for its reasonable travel, meals, and accommodation, subject to any agreed restrictions set out in the applicable Statement of Work.  
  • While performing on-site Swrve PST, Swrve personnel will abide by all reasonable security, health and safety and other policies of Customer notified to Swrve in writing.

Insurance:

  • We will maintain adequate public liability, workers’ compensation and professional liability insurance in respect of the provision of the PST and will furnish satisfactory evidence of such insurance(s) to you upon your written request.

8.  THIRD PARTY SERVICES

  • Swrve’s Add-On Service, known as Swrve Amplify™, provides you with an integration service for use with Third Party Services.  
  • It is your responsibility to ensure that such integration and your configuration of the Swrve Service is permitted under the terms of service in place between you the provider of such Third Party Services.  
  • Swrve will only transfer data to a Third Party Service at your direction and we have no responsibility for, or control over Third Party Services.  Third Party Services are specifically excluded from the definition of the Swrve Service.
  • Where Swrve is provided with access to Third Party Services to facilitate integration, you are responsible for maintaining the security of your Third Party Service account and ensuring that Swrve has the requisite permissions to access the account from the End User (as necessary) and the provider of the Third Party Services.

9. NON-DISCLOSURE

  • The Swrve Service, including the ideas and concepts contained therein and the documentation accompanying the Swrve Service, constitutes our confidential information. You shall not disclose the details of the Swrve Service, or portion thereof, to any third party. 
  • This section shall survive termination of this Agreement until and to the extent that such information becomes publicly available (other than by a breach of these obligations). 
  • If we have signed a non-disclosure agreement, the terms of such agreement shall also apply to your use of the Swrve Service, to the extent that such terms do not conflict with this Agreement. 

10. DATA PRIVACY AND AGGREGATE DATA

Data Privacy:

  • The collection and use of User Data by Swrve is set out in Appendix 2 (Data Protection).

Swrve Use of Anonymous User Data:

  • Swrve may use User Data, that does not contain Personal Data, for internal business purposes such as trend analysis, predictive models, testing, optimization, support and diagnostics. 
  • Swrve may also use Aggregate Data for its external business purposes such as in the preparation of industry reports and white papers for publication. Swrve will never disclose or publish Aggregate Data relating to an individual Customer or Customer App without Customer’s prior consent. 
  • Swrve will never disclose or publish User Data relating to any individual. 

11. OWNERSHIP

  • The Swrve Service, Swrve Work Product and all Intellectual Property Rights therein are owned by Swrve and/or our licensors and are protected by copyright and other intellectual property laws in the United States, Europe and throughout the world. 
  • The Swrve Services is licensed and not sold under this Agreement.  This Agreement does not convey to you any rights of ownership in or related to the Swrve Service, Swrve’s technology and/or Swrve or its licensors Intellectual Property Rights. 
  • With regard to Swrve Work Product, Swrve’s ownership rights therein shall immediately vest and remain vested upon the creation thereof.  However, to the extent the foregoing is not effective, you hereby fully assign all such Intellectual Property Rights in and to the Swrve Work Product to Swrve, on an exclusive, worldwide and royalty-free basis, with full title guarantee. In connection with such assignment, you agree to execute any document that we may reasonably require to perfect our right, title or interest in and to the Swrve Work Product. 
  • The Swrve name and any logos and product names associated with the Swrve Service are trademarks of Swrve or third parties, and no right or license is granted to use them. 
  • All rights not expressly granted in this Agreement are reserved by Swrve. 

12. FEEDBACK

  • We encourage you to provide feedback on errors or quality issues and suggestions for the improvement of the Swrve Service (“Feedback”). 
  • You agree that we may use any such Feedback that you provide to us in any way, including without limitation in any future enhancements and modifications to the Swrve Service. 
  • You hereby grant Swrve a perpetual, worldwide, irrevocable, royalty free license to use, reproduce, modify, create derivative works of, distribute, and display the Feedback for any purpose. 

13. TERM. 

The Term of your subscription to the Swrve Service is based on the Swrve Edition that you have licensed, as follows:

Temporary Edition:

  • The Term of temporary or evaluation subscriptions is on a month-to-month basis.  
  • Either party may terminate access at any time by giving emailed written notice to the other. 

Commercial Edition and all other Editions:

  • The Term of commercial or other subscriptions will be set out in your Commercial Terms. 
  • On expiration of the initial term set out in the Commercial Terms, the Agreement will automatically renew for annual periods (each a “Renewal Term”), unless either party gives the other not less than thirty (30) calendar days’ emailed written notice of its intention not to renew, prior to the end of the then current Term or Renewal Term.  Such termination will be effective as of the end of the then current Term or Renewal Term.  
  • The license granted to the Swrve Work Product shall expire concurrently with the expiration of your subscription term to the Swrve Service.

14. TERMINATION. 

Other that as set out above, either party may terminate this Agreement as follows:

Termination for Cause:

  • Either party may terminate this agreement for cause, if the other party breaches a material term of this Agreement and fails to remedy such breach, where capable of remedy, within thirty (30) days of notice from the non-breaching party.  
  • Either party may terminate this agreement for cause in the event the other party becomes bankrupt, makes any arrangement with or for the benefit of its creditors, enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bona fide reconstruction), has a receiver or manager appointed of the whole or substantially the whole of its undertakings, or any equivalent procedure under any applicable law, or if the other party becomes unable to pay its debts as they fall due.

Suspension of Service:  

  • Swrve reserves the right to suspend your access to the Swrve Service, without liability to you, if you are (a) more than fifteen (15) days late in payment of the service fees due hereunder; or (b) in material breach of this Agreement.  The foregoing shall be in addition to any other rights or remedies available to Swrve, including termination of this Agreement.

Refund:

  • Upon valid termination by you for cause, Swrve will give you a refund of any prepaid fees pro-rated to the effective date of termination.  Otherwise all fees paid are non-refundable.

Effect of Termination:  

  • Upon termination, for any reason, you must stop using the Swrve Service. 
  • You must cease using all copies of the Swrve Service and destroy or return any other Swrve confidential information in your possession or control.
  • You must remove the Integration Code from the Customer App(s) with a reasonable period and cease all use of such Integration Code and Swrve API.  However, in the event the Agreement is terminated by Swrve for cause, no reasonable grace period is given and you must remove the Integration Code from your app immediately.
  • You acknowledge that upon termination for any reason, Swrve may terminate your account. 
  • You also acknowledge that, on termination, you will no longer have access to any personalization features or customized versions of the Customer App(s) that were enabled by the Swrve Service.
  • Any provision of this Agreement which by its terms reasonably ought to survive termination of this Agreement, shall so survive.  

Data Retention:

  • Unless this Agreement has been terminated by Swrve for cause, we will maintain your User Data and Customer App(s) information for a period of thirty (30) days, and make it available to you to download in a format reasonably determined by us. 
  • If we terminate this Agreement for cause, Swrve will have no obligation to maintain your User Data and Customer App(s) information as per above, and all such data and information may be deleted permanently and may not be retrievable.
  • Under no circumstance will Swrve be obliged to maintain User Data or Customer App(s) information for longer than thirty (30) days from when you cease the use of the Swrve Service or this Agreement has been terminated.
  • Swrve’s detailed data retention policies can be found in the Swrve Service Limits. 

15. WARRANTIES

By Swrve:  

  • With regard to the Swrve Service, provided that you comply with the Swrve Service Limits, we warrant that the Swrve Service will operate substantially and materially in accordance with its published specifications and documentation on the Swrve Platform. 
  • With regard to the Swrve PST, we warrant that the PST will be provided in a professional and workmanlike manner.

By You:

  • You warrant that: (i) you have all requisite power and authority to enter into and perform this Agreement; (ii) use of your User Data by the Swrve System does not breach the rights of any person or entity, including without limitation rights of publicity, privacy or under applicable data protection laws; and (iii) where Swrve has not been put on notice, Personal Data will not be processed via the Swrve Service. 

Disclaimer of Warranties & Exclusions:

  • The representations and warranties set out above are in lieu of all other warranties, representations and guarantees of any kind by Swrve, and except as otherwise set forth above, the Swrve Service, Swrve PST and any other applications, services, or materials hereunder (if any) are furnished by Swrve and accepted by Customer “AS IS”.  
  • ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY SWRVE, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR OTHER WARRANTIES OF NON-INFRINGEMENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, COMPATIBILITY, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  
  • SWRVE DOES NOT WARRANT THAT THE SWRVE SERVICE, PST, OR ANY OTHER APPLICATIONS, SERVICES, MATERIALS PROVIDED UNDER THIS AGREEMENT WILL MEET YOUR REQUIREMENTS, OR THAT THEY OR THEIR ACCESS OR USE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SWRVE SERVICE WILL BE SUITABLE FOR YOUR NEEDS OR YOUR INTENDED APPLICATIONS, OR THAT THE SWRVE SERVICE OR PST WILL BE COMPATIBLE WITH OR OPERATE IN THE HARDWARE, SOFTWARE, OR WEBSITE CONFIGURATIONS THAT YOU SELECT.  
  • SWRVE DOES NOT WARRANT THAT REPORTS WILL BE ERROR-FREE.  
  • SWRVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY, FAILURES OR OTHER DAMAGES RESULTING FROM USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS OR RELATED EQUIPMENT TO WHICH THE SWRVE SERVICE OR PST MAY BE SUBJECT.
  • Swrve makes no performance warranties whatsoever, including those set out above with regard to Swrve Service OR PST features identified as “alpha”, “beta”, “first access”, “early access” or “pre-release”.

Remedies:  

  • In the event the Swrve Service, PST or any part thereof, is held to constitute an infringement of a third party Intellectual Property Right, Swrve may, at its sole discretion and expense: (i) modify the infringing portion of the Swrve Service or PST without impairing in any material respect the functionality or performance, so that it becomes non-infringing, (ii) procure for you at Swrve’s expense the right to continue to use the Swrve Service or PST, or the infringing portion thereof; (iii) replace the Swrve Service, PST, or infringing portion thereof with equally suitable, non-infringing software; or (iv) if none of the foregoing options is commercially practicable, in Swrve’s sole discretion, terminate this Agreement immediately with no liability to you. 

16. LIMITATION OF LIABILITY

General Limitation:

  • IN NO EVENT SHALL SWRVE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, AND INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA; LOSS OF PROFITS, REVENUE, GOODWILL, OR OTHER PECUNIARY LOSS; BUSINESS INTERRUPTION; COST OF REPLACEMENT SERVICES OCCASIONED BY ANY DEFECT IN THE SWRVE SERVICE, OR THE INABILITY TO USE SERVICES PROVIDED HEREUNDER; OR ANY OTHER CAUSE WHATSOEVER WITH RESPECT TO THE SWRVE SERVICE, SWRVE PST, THIRD PARTY SERVICES, OR THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY AT LAW OR IN EQUITY.  THESE LIMITATIONS WILL APPLY EVEN IF SWRVE HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
  • Nothing in these TOS will limit or exclude any liability in a way that is not permitted under applicable law.

Third Party Services:

  • WE DISCLAIM ALL RESPONSIBILITY FOR THE ACTIONS OF THE PROVIDERS OF THIRD PARTY SERVICES FOR LOSS, DAMAGES OR CLAIMS ARISING AS A RESULT OF DEPLOYING SUCH INTEGRATIONS. 
  • WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF SUCH THIRD PARTY SERVICES OR FOR THE ACTS OR OMISSIONS OF SUCH PROVIDERS OF THIRD PARTY SERVICES. 
  • WE HAVE THE RIGHT TO CEASE TO PROVIDE INTEGRATIONS IF CIRCUMSTANCES CHANGE SUCH THAT INTEGRATIONS ARE NO LONGER PERMISSIBLE OR PRACTICABLE.

Personal Data:  

  • EXCEPT WHERE YOU HAVE PUT SWRVE ON NOTICE THAT PERSONAL DATA WILL BE PROCESSED THROUGH THE SWRVE SERVICE, IN NO EVENT SHALL SWRVE OR ANYONE ACTING ON BEHALF OF SWRVE, BE LIABLE TO YOU OR ANY THIRD PARTY IN RESPECT OF ANY MATTER ARISING OUT OF, OR IN CONNECTION WITH, THE ACCESS TO OR PROCESSING OF END USER PERSONAL DATA BY SWRVE OR ANYONE ACTING ON BEHALF OF SWRVE.

Liability Cap:

  • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SWRVE’S AGGREGATE LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SWRVE SERVICE, OR PST FOR ANY DAMAGES, LOSSES, CLAIMS AND/OR CAUSES OF ACTIONS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) WARRANTY OR OTHERWISE, EXCEED (A) THE FEES ACTUALLY PAID TO SWRVE BY YOU IN RESPECT OF THE SWRVE SERVICE FOR THE PREVIOUS TWELVE (12) MONTHS; OR (B) IN REGARD TO THE PST, THE FEES ACTUALLY PAID TO SWRVE BY YOU IN RESPECT OF THE PST FOR THE PREVIOUS TWELVE (12) MONTHS.

17. INDEMNIFICATION

  • You agree to indemnify and hold harmless Swrve, its subsidiaries, affiliates and subcontractors, and each of their respective employees, directors, officers, shareholders, attorneys, agents and representatives, from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees and costs) from any claim, action, judgment, audit, investigation, inquiry or other proceeding that arises out of or relates to: (a) any breach of your representations, warranties, duties, or obligations set forth in this Agreement; (b) any use of Swrve’s or its licensors’ Intellectual Property Rights or technology in a manner not expressly authorized by this Agreement; (c) your failure to comply with applicable laws and regulations in your use of the Swrve Service, including without limitation any applicable data protection or other laws relating to your directly marketing activities; (d) your violation of the rights of a third party, including without limitation through any data processing instructions or data transfer instructions to Swrve, or any integrations with Third Party Services requested by you.
  • The indemnification obligations set forth herein shall survive the termination of this Agreement.

18. APPLICABLE LAW

North America: 

  • If you are based in North America, the laws of the State of California shall govern the interpretation of this Agreement, without reference to conflict of laws principles, and the parties hereto submit to the exclusive jurisdiction of the state or federal courts located in San Francisco, California.

Outside North America: 

  • If you are based outside of North America, the laws of the United Kingdom apply, without reference to conflict of laws principles, and the parties hereto submit to the exclusive jurisdiction of the courts located in London, England.
  • The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of this Agreement.

19. GENERAL

Entire Agreement:  

  • These TOS, including its appendices, exhibits, and attachments, the Commercial Terms (if any), and the Swrve Service Limits constitute the complete and entire Agreement of the parties relating to the subject matter hereof, and supersede all other agreements, representations, understandings or communications, whether oral or written, between the parties.  
  • No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party. 

Amendment:

  • Other than changes by Swrve as set forth at the beginning of these TOS, the Agreement may not be modified or amended except in writing signed by both parties for the purposes of which the parties agree email is insufficient.

Waiver:  

  • A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not be deemed or construed to be a continuing waiver of such term or condition or any subsequent breach thereof.

Severability:  

  • If any provision, or part thereof, of this Agreement is held to be invalid or unenforceable, the parties shall use their best efforts to replace such provision by a provision that, to the extent permitted by applicable law, achieves the purposes originally intended.  
  • If it cannot be so reformed it shall be omitted.  The balance of this Agreement shall remain valid and unchanged and in full force and effect.

Assignment:  

  • You may not assign, license, sub-license, or transfer this Agreement or any of its rights hereunder, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.  
  • in the event of a sale, merger, acquisition or similar corporate activity Swrve may assign its rights and obligations under this Agreement to the successor in interest or title to all or substantially all of that part of the business to which this Agreement relates.  
  • This Agreement shall be binding upon and inure for the benefit of the successors and permitted assigns, in title of the parties hereto.

Export:  

  • Each party agrees to comply all export laws, restrictions, national security controls and regulations of the United States or other applicable national or foreign agency or authority, and not to export or re-export, or allow the export or re-export of any software or other Confidential Information, or any copy or direct product thereof, in violation of any such restrictions, laws or regulations.

US Government Rights: 

  • The technical data and computer software covered by this license is a “Commercial Item,” as such term is defined by the FAR 2.101 (48 C.F.R. 2.101) and is “commercial computer software” and “commercial computer software documentation” as specified under FAR 12.212 (48 C.F.R. 12.212) or DFARS 227.7202 (48 C.F.R. 227.7202), as applicable. 
  • This commercial computer software and related documentation is provided to end users for use by and on behalf of the U.S. or any foreign Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein. 

Equitable Relief:  

  • Notwithstanding anything to the contrary herein, the parties agree that a material breach of this Agreement adversely affecting Swrve’s Intellectual Property Rights or Swrve’s rights in its confidential information may cause irreparable injury to Swrve for which monetary damages would not be an adequate remedy and that Swrve shall be entitled to apply for equitable relief, without the posting of a bond, in addition to any remedies it may have hereunder or at law.

Force Majeure:  

  • Neither party shall be liable to the other for acts beyond its reasonable control including, but not limited to, acts of God, or public enemy, the acts or failure to act of any governmental authority, civil unrest, acts of civil or military authority, war, embargos, labor disputes, fires, earthquakes, epidemics, floods, unusually severe weather, or shortage or absence of power, without limitation including primary power and failure of backup systems. 

Independent Contractors:  

  • Each party will act at all times as an independent contractor to the other party and will have no right or authority to act on behalf of, create any obligation for, or bind the other party in any way.  Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.

Forms:  

  • Pre-printed or standard terms and conditions of any purchase or other ordering document issued by you in connection with this Agreement shall be void, and as such shall not be binding on Swrve and shall not be deemed to supersede or replace any terms and conditions hereof or otherwise modify this Agreement, regardless of whether such documents claim to do so.  
  • This shall apply to all ordering documents that relate to fees paid under this Agreement, regardless of when they are created.

Headings, Captions and Names:  

  • The name of this Agreement, and all headings and captions herein contained, are for reference and convenience only and do not define, limit or expand the scope or intent of any provision hereof and shall not be relied upon in or in connection with the construction or interpretation of this Agreement.  
  • The words “herein,” “hereunder,” “hereof” and similar terms refer to this entire Agreement and shall not be limited to the specific sections in which they are used.

Appendix 1: Glossary

Capitalized terms used in the TOS, including any appendices or attachments hereto, and not otherwise defined shall have the following meanings:

  • Add-on Services” means services other than the standard Swrve Service made available by Swrve which are separately purchased by a Customer for fees in addition to the base license price for the Swrve Service.  The Add-on Services as licensed by the Customer are shown in the Commercial Terms.
  • Aggregate Data” means aggregated statistics derived from User Data, not containing Personal Data 
  • Agreement” means collectively, these TOS, including its appendices, exhibits, and attachments; the Commercial Terms (if any); and the Swrve Service Limits. 
  • Commercial Terms” means the description of the services, fees, and terms and conditions related thereto that is a separate writing that references these TOS and are signed by the parties thereto.
  • Customer App(s)” means your online and mobile application(s) using the Swrve Service.
  • DPA” means Appendix 2: Data Protection or such other data protection addendum that the parties may agree in writing with regard to the processing of User Data.
  • End User” means an end user of Customer App(s).
  • Integration Code” means the software code for the integration of the Swrve SDK and a third party software.
  • Intellectual Property Right” means any patent, utility model, design patent, copyright, trademark, service mark, trade dress, trade name, logo, trade secret, moral right, know-how, all rights whatsoever nature in computer software and data, database rights, rights of privacy, and all other intangible property rights and privileges, throughout the world, whether or not a party has applied for or been granted registration or other protection therefor.  
  • Personal Data” means any data relating to living individuals who are or can be identified from the data or from the data in conjunction with other information that is in, or is likely to come into, our possession.
  • PST” means professional services and training provided by Swrve with regard to the Swrve Service and/or the Customer App(s).
  • Reports” means the various reports related to the behavior and usage patterns of users using the Customer’s application generated through the Swrve Service.
  • Swrve API” means the Swrve application programming interface in connection with the Swrve Service.
  • Swrve Edition” means the type of license under which the Swrve Service is provided to customers. There are various types of developer, temporary and commercial licenses in use by Swrve which may have varying terms and conditions.
  • Swrve Platform” means the Swrve Services described as the Swrve Platform in the online documentation or in any Commercial Terms agreed to between you and Swrve. 
  • Swrve SDK” means the Swrve software development kits in connection with the Swrve Service.
  • Swrve Service” means collectively (a) the services provided by Swrve (including the Swrve Platform, and Add-on Services as ordered by Customer pursuant to the Commercial Terms), documentation, sample code and any fixes, updates and upgrades thereto that are provided by Swrve; (b) access to the Swrve API, the Swrve SDKs and/or the Integration Code necessary for Customer to install and deploy in order to make use of the functionality of the services; (c) the Swrve dashboard, analysis, testing, messaging tools and administrative console; and (d) Reports.
  • Swrve Service Limits” means the Swrve Service Limits, as updated from time to time at https://www.swrve.com/company/service-limits. 
  • Term” means the period of validity of this Agreement, including any Renewal Term.
  • Third Party Services” means the applications and platforms of third parties that may be integrated at the direction of Customer using Swrve Amplify.
  • User Data” means all End User information that is collected by the Swrve Service, including Personal Data.
  • Work Product” means any materials used, developed or created by Swrve in the course of performing PST.

Appendix 2: Data Protection

The Swrve Service collects certain User Data regarding the behavior and usage patterns of End Users of Customer App(s).  You are in control of the User Data to be collected and analyzed via the Swrve Service and therefore where applicable you may also be referred to herein as the “Data Controller” and Swrve may be referred to as the “Data Processor”.  This Appendix 2 may also be referred to as the DPA.

1. END USER DATA

Collection and Use of User Data:
  • With respect to End Users, Swrve does not automatically collect any Personal Data, and you may operate the Swrve Service so that no End User Personal Data is processed.
  • Except where more stringent requirements are set out in this DPA, the processing of User Data by the Swrve System is subject to Swrve’s privacy policy available at www.swrve.com/company/privacy and Swrve’s Cookie Policy available at www.swrve.com/cookies.
  • See Swrve and your Data (at https://docs.swrve.com/legal/swrve-and-your-data/) for comprehensive information on the data automatically collected and that you may choose to collect from End Users through your use of the Swrve Service.   
Processing of Personal Data:  
  • YOU MUST PROVIDE SWRVE WITH PRIOR WRITTEN NOTICE OF YOUR INTENT TO PROVIDE, SEND, COLLECT OR IN ANY WAY PROCESS END USER PERSONAL DATA VIA THE SWRVE SERVICE.  
  • Processing Personal Data via the Swrve Service, includes without limitation (a) processing by you; or (b) by Swrve due to such events as (i) data import or export; or (ii) transfer occurring due to an integration with a Third Party Service.  
  • Upon notice of your intent to process Personal Data, Swrve will consult with you and treat such Personal Data as required under the terms of this DPA and Section 2 (Processing of Personal Data) below will apply thereto.
Sensitive Personal Data: 
  • Under no circumstance are you permitted to use the Swrve Service to process, or provide Swrve with, ‘sensitive personal data’ as defined in Directive 95/46/EC or any other information which is subject to elevated data processing responsibilities in your jurisdiction, or any jurisdiction in which Swrve operates, including without limitation social security numbers, driver’s license numbers, national id numbers, medical or health care data, or credit card or other payment or banking information. 

WHERE YOU HAVE PROVIDED US WITH NOTICE THAT YOU WILL BE COLLECTING END USER PERSONAL DATA VIA THE SWRVE SERVICE THE FOLLOWING TERMS APPLY:

2.    PROCESSING OF PERSONAL DATA.

Swrve’s obligations as Data Processor:  
  • By opting to process Personal Data using the Swrve Service, you hereby agree that Swrve is the data processor (as defined by European data privacy regulations) with respect to such Personal Data.  
  • As the Data Processor with respect to User Data, Swrve acknowledges and agrees that: 
    • Swrve will process Personal Data in accordance with the Agreement, including this DPA, and any lawful instructions reasonably given by you from time to time.
    • Swrve will not use End User Personal Data for which Customer is Data Controller for any purposes other than as necessary to meet Swrve’s obligations under this DPA, the Main Agreement, or as otherwise instructed by Data Controller;
    • Swrve will not disclose any End User Personal Data for which Customer is responsible to a third party, except at Customer’s specific request or where obliged to do so under any statutory or other legal requirement (in which case it will use reasonable endeavors to advise you in advance of such disclosure and in any event immediately thereafter); and
    • Swrve will not export End User Personal Data outside the European Economic Area (“EEA”), where it is agreed between the parties that End User Personal Data will be processed within the EEA, unless specifically requested to do so by you under the terms of Section “Transfers of Personal Data Outside the EEA” (below). 
Your Obligations as Data Controller:  
  • By opting to process Personal Data using the Swrve Service, you hereby agree that you are the data controller (as defined by European data privacy regulations) with respect to such Personal Data.  
  • In addition to your other responsibilities set out elsewhere in the Agreement, You also acknowledge and agree that:
    • You have and will continue to abide by an appropriate privacy policy relating to the collection and use of End User Personal Data. You must post a privacy policy and that policy must provide notice of your and Swrve’s use of End User Personal Data; 
    • You shall, at all times, comply with your obligations as data controller and shall procure that your subcontractors or agents and all authorized users comply with their obligations under all applicable data protection legislation in relation to all End User Personal Data that is processed by or on your behalf under this DPA. You shall ensure that all direct marketing undertaken or intended to be undertaken by or through your use of the Swrve Service or Third Party Services will comply with all applicable legislation;  
    • You shall ensure that your customers and all relevant third parties have, been informed of, and have given their consent, as required by applicable data protection legislation, to the specific use, processing, and transfer of Personal Data as contemplated by this DPA.  This also includes consent to use of cookies and more particularly the specific cookies that are used by Swrve in delivering the Swrve Service, and the specific data collected, as per above; 
    • End User Personal Data may be transferred or stored outside the country where you or your End Users are located in order to carry out the Swrve Service and our other obligations under Main Agreement.  Notwithstanding the foregoing, in the event the parties have agreed to process End User Personal Data within the EEA, Swrve will not transfer data outside of the EEA, except on your specific request and under the terms below;

3. SECURITY MEASURES; BREACH NOTIFICATION.  

Organizational and Security Measures:  
  • Each party agrees to take appropriate, and industry standard, technical and organizational measures against unauthorized or unlawful access or processing of End User Personal Data or its accidental lost, destruction or damage, such as appropriate system and network access controls, intrusion detection and prevention systems, network segmentation, encryption, and the like.
Security Breach Notification: 
  • Swrve will promptly notify Customer of any known or reasonably suspected loss, misuse, or unauthorized access, intrusion, destruction, deletion, modification, or other material compromise of Customer’s End User Personal Data processed by Swrve (“Security Breach”).  
  • Upon discovering a Security Breach, Swrve shall take all reasonable industry standard measures to mitigate any harmful effects of such Security Breach and work with Customer as necessary to address the Security Breach.

4. TRANSFER OF USER DATA TO THIRD PARTY PROVIDERS.

Third Party Providers Appointed by Swrve:  
  • The Swrve Service is provided on a software-as-a-service, hosted basis.  As such, Swrve uses third party providers to provide certain services, including hosting.  These currently include Amazon Web Services for hosting and Plot Projects for geolocation and beacon services with related hosting.  
  • These third party providers will have access to certain data, including relevant End User Personal Data, however such third party providers are only permitted to process data, for the purposes of providing their specifically contracted services to Swrve.  
  • Swrve will use commercially reasonable efforts to ensure that such third party providers utilize reasonable industry recognized security measures to protect against loss, misuse and unauthorized viewing of the information you provide to Swrve.  
  • SWRVE DOES NOT GUARANTEE AND SHALL NOT BE LIABLE FOR THE PERFORMANCE OF ANY THIRD PARTY PROVIDER.
Third Party Providers Appointed by You:  
  • You may elect to subscribe to Swrve Services that permit integration with Third Party Services.  
  • Where you choose to integrate with Third Party Services, this may entail providing Swrve with access to User Data held by such Third Party Services, and may require the providers of such Third Party Services to have access to Customer’s User Data collected via the Swrve Service.  Swrve will only transfer User Data to providers of Third Party Services or other third parties appointed by you on written instructions from you.  
  • With regard to third party providers, you acknowledge and agree that:
    • Swrve has no contractual relationship with such third parties, and no responsibility for End User Personal Data once such a transfer commences, nor for the duration such third party holds the relevant data.  Swrve does not audit the adequacy or otherwise confirm the security or organizational measures employed by such third parties, which is your sole responsibility. 
    • You are responsible for ensuring that your use of the Swrve Service complies with any service terms of applicable Third Party Services or service terms relating to other applicable third parties. Swrve is not required to maintain End User Personal Data collected in breach of any relevant data protection or other applicable laws.
    • Swrve makes no representations as to the appropriateness or legality of your choice to permit such third parties with access to its User Data, and you are responsible for ensuring that you have all requisite consents, and have provided any required notices to End Users with respect to this processing of their data. Swrve is not responsible for the processing of User Data by Third Party Services.  
    • SWRVE HEREBY DISCLAIMS ALL RESPONSIBILITY FOR THE ACTIONS OF SUCH THIRD PARTIES OR FOR LOSS, DAMAGES, OR CLAIMS ARISING AS A RESULT OF DEPLOYING INTEGRATION CODE INVOLVING PERSONAL DATA OR MAKING A TRANSFER OF PERSONAL DATA ON CUSTOMER’S BEHALF.  SWRVE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF SUCH THIRD PARTY FOR RECEIPT OF PERSONAL DATA NOR OF THE SUITABILITY OF THE THIRD PARTY SERVICES TO PROCESS PERSONAL DATA.
Transfers of End User Personal Data Outside The EEA: 
  • Swrve will only transfer End User Personal Data outside the EEA on your specific request.  Examples of why you may make such a request are transfers of such data to you or your affiliates, where you or your affiliate is based outside the EEA; a transfer to a third party outside of the EEA for further processing of the data; a specific request by you that Swrve uses an third party hosting provider or where you opt to integrate with Third Party Services outside of the EEA. 
  • All requests to transfer End User Personal Data outside the EEA, except with respect to transfers related to integrations with Third Party Services, must be made to us via email or in writing. 
  • Where you opt to send End User Personal Data to providers of Third Party Services via integration, you agree that providers of Third Party Services are not sub-processors of Swrve for data protection purposes and such providers are your directly-contracted data processors acting under your instructions. 
  • In making a request for Swrve to transfer End User Personal Data, subject to EU Privacy Directive 95/46EC and related privacy regulations outside of the EEA, you confirm the following:
    • there is “an adequate level of protection” in place for such transfer as such term in understood under Directive 95/46/EC.
    • You will indemnify and hold harmless Swrve, its subsidiaries and affiliates (and their respective employees, directors, officers, shareholders, attorneys, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees and costs) from any claim, action, audit, investigation, regulatory action, inquiry or other proceeding that arises out of or relates to use of End User Personal Data by Third Party Services providers, or other transferees, or your failure to comply with any applicable laws and regulations in connection with the transfer of the End User Personal Data outside the EEA including any applicable data protection legislation or that arises out of or relates to any subsequent use of the data by the relevant transferee. This indemnification obligation set forth herein shall survive the termination of your use of the Swrve Service and/or the termination of the Agreement.

5. SUBJECT ACCESS REQUESTS 

  • Swrve will promptly assist you with all notice, requests or other enquiries relating to the data protection rights which may be received by you or Swrve, at your reasonable expense.  
  • Swrve will not be responsible for determining the authenticity of any purported data subject’s request to access his or her End User Personal Data. In the absence of express instructions to do so from you, Swrve will not provide a data subject with access to his or her Personal Data unless it is demonstrated to our satisfaction that the applicable data controller has refused such access.

6. ADDITIONAL WARRANTY.  

  • By using the Swrve Service to process End User Personal Data you warrant and represent, that your collection and processing of End User Personal Data does not breach the rights of any person or entity, including rights of publicity, privacy or under applicable data protection laws, that you are entitled to transfer the relevant End User Personal Data to Swrve, and that Swrve is entitled to transfer End User Personal Data to its subcontractors and third party providers (as directed) so that they each respectively may lawfully use, process and transfer such User Data in accordance with this DPA and the Agreement.