Terms of Service
Please read these terms of service ("TOS") carefully. They constitute a legally binding agreement and contain terms limiting our liability to you, exclusions of certain warranties, and terms relating to our access to and use of data collected and analyzed by the Swrve Service (as defined in section 1 below).
These TOS apply to the Swrve Service for Licensee’s with developer licenses, temporary licenses and commercial licenses. We refer to the various type of license being used as an edition of the Swrve Service (“Swrve Edition”). These TOS also apply to the add-on services that Licensee’s may opt to order via the Commercial Terms (as defined in section 3 below).
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 clickthrough or otherwise.
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 should not use the Swrve Service.
Within North America, the Swrve Service is made available by Swrve New Media Inc. with its principal offices at 55 Stockton Street, Suite 400, San Francisco, CA 94108 and outside of North America, the Swrve Service is provided by New Game Technologies Limited t/a Swrve New Media, an Irish-registered company with its primary office located at 2nd Floor, IBOA House, Stephen St Upper, Dublin 8, Ireland (“Swrve”, “us” or “we”) to you and/or your company (“you”).
Words such as including, include, for example or any similar expression are illustrative and shall not limit the sense of the words, description or term preceding those terms.
The “Swrve Service” is: (i) the services provided by Swrve (including the add-on services as ordered by the Licensee in the Commercial Terms), documentation, sample code and any fixes, updates and upgrades provided; (ii) access to the Swrve application programming interface (“Swrve API”), the Swrve software development kits (“Swrve SDKs”) and/or Swrve and/or its licensors integration code (“Integration Code”) necessary for you to install and deploy in order to make use of the functionality of our services; (iii) access to the Swrve dashboard, analysis, testing, messaging tools and administrative console; and (iv) access to a variety of reports related to the behavior and usage patterns of users using your application (“Reports”). The Swrve Service may be used by you for the purposes of app content, advertising and feature management, campaign tracking, beacons, behavioral and location targeting, messaging, push notifications and analytics according to the Swrve Edition to which you have subscribed and the add-on services you may have ordered.
Swrve’s add-on service, ‘Amplify’, provides you with an integration service for use with third party applications and platforms (“Third Party Services”). You hereby ensure that such integration is permitted under the terms of service in place from time to time with the provider of such Third Party Services. We have no responsibility for or control over Third Party Services. The definition of the Swrve Service excludes Third Party Services.
In consideration of you abiding by the terms and conditions set forth in these TOS and any applicable Commercial Terms (as defined in Section 3 below), we hereby grant you a non-exclusive, non-transferable, limited-term license to (i) make calls to the Swrve API and/or (ii) install, use and embed the 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.
Access to the Swrve Service is limited to those of your employees and contractors who have been issued usernames and passwords by you or us. Your licensee administrator may also ask us (via email) to create logins for third party users who are assisting you with app 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 (as defined in section 4 below) and the provider of the Third Party Services.
Reports may be distributed within your organization for the purpose of analyzing your app.
2 SERVICE UPDATES
We will be updating the Swrve Service and adding new or different features and functionality on a regular basis. Provided you have complied with our 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 delete certain features from time to time.
In the event the Swrve Service or any part of it 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 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 the infringing portion of the Swrve Service; (iii) replace the Swrve Service or infringing portion thereof with equally suitable, non-infringing software; or, if none of the foregoing options is commercially practicable, in Swrve’s sole discretion, (iv) terminate this Agreement immediately with no liability to you.
Whether fees are payable by you will depend on whether you have a temporary or a commercial license to use the Swrve Service. Unless we both agree otherwise, no fees are payable for a temporary license for usage within the agreed limits. For commercial clients, you will have entered into written commercial terms (“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 apply. All usage of the Swrve Service must comply with the usage limits contained in the Swrve Service Limits (available on our Platform). Failure to do so may result in Swrve suspending or terminating your ability to access the Swrve Service and this Agreement. You hereby agree to pay such fees free of any set off or counterclaim.
You agree to comply with all applicable data protection law and regulations and, where required, will provide satisfactory notices to and obtain the requisite consents from the users of your application (“End Users”) with respect to the intended use of their data by you via the Swrve Service and Third Party Services, including processing by our relevant subcontractors.
The Swrve Service collects data regarding the behavior and usage patterns of End Users. With respect to End Users, we do not automatically collect 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, or is likely to come into, our possession (“Personal Data”).
All End User information that is collected by the Swrve Service, including Personal Data, is defined as “User Data”. You are in control of the User Data to be collected and analyzed via the Swrve Service.
You are not permitted to provide Swrve with ‘sensitive personal data’ as defined in Directive 95/46/EC or any other information, such as payment or banking information, which is subject to elevated data processing responsibilities in your jurisdiction or any jurisdiction in which Swrve operates.
Where you opt to provide, send, collect or in any way process End User Personal Data via the Swrve Service or add-ons, you must provide us with notice of your intent to do so. Please see the document entitled “Swrve and your Data” (available on our Platform) for comprehensive information on the data you may choose to collect from End Users through your use of the Swrve Service.
To put us on notice that End User Personal Data will be processed via the Swrve Service or processed by Swrve due to a data sync or transfer occurring due to an integration with a Third Party Service you must sign and deliver to us the data protection addendum to our TOS (the “Data Protection Addendum”). We will then consult with you and treat such Personal Data in accordance with the terms of the Data Protection Addendum.
WHERE WE HAVE NOT BEEN PUT ON NOTICE IN THE MANNER PROVIDED IN THE IMMEDIATELY PRECEDING PARAGRAPH, YOU WARRANT THAT END USER PERSONAL DATA WILL NOT BE PROCESSED VIA THE SWRVE SERVICE AND AGREE THAT IN NO EVENT SHALL SWRVE OR ITS SUBCONTRACTORS 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 ITS SUBCONTRACTORS.
You are also responsible to and at all times will comply with service terms and privacy terms of providers of Third Party Services or other relevant services with which you choose to integrate via the Swrve Service. You further agree that your use of the Swrve Service complies with such terms. Where you choose to integrate with Third Party Services or other relevant services, this may entail providing us with access to the data held by those service providers. In addition, by integrating with Third Party Services or other relevant services you require us to allow the providers of such services to have access to your User Data collected via the Swrve Service. Some Third Party Services or other relevant services may access User Data from outside the EEA. We make no representations as to the appropriateness or legality of your choice to permit such access and you are responsible for ensuring that you have all requisite consents and have provided the required notices to End Users with respect to this processing of their data. We are not responsible for the processing of User Data by Third Party Services or other relevant services.
We may use User Data that does not contain Personal Data for internal business purposes such as trend analysis, testing, optimization, support and diagnostics. We may also use aggregated statistics derived from User Data ("Aggregate Data") for our external business purposes such as in the preparation of industry reports and white papers for publication. We will never disclose or publish Aggregate Data relating to an individual app without your prior consent. We will never disclose or publish User Data relating to any individual.
5 SUPPORT SERVICES.
Support queries may be logged via email to firstname.lastname@example.org or directly via the Swrve Service.
6 YOUR RESPONSIBILITIES
You may not use (“use” includes accidental use or malicious use) the Swrve Services to:
- upload, post, send, email, or otherwise transmit or make available:
- any content that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, obscene, libelous, hateful, or racially or ethnically objectionable material or message;
- any content or material that you do not have a right to transmit or any material that infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
- 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 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;
- in the case of e-mail campaigns using the Third-Party Services, 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;
- any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- any material that contains any content which may subject to any rules and regulations promulgated under the U.S. Export Administration Act of 1979 (as amended from time to time) or the U.S. Arms Export Administration Act of 1976 (as amended from time to time);or
- any material that contains any person’s social security number, individually identifiable health or health insurance information, bank account information or credit card information;
- impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
- breach any right of privacy, right of confidence or right under consumer or data protection legislation, wheresoever and howsoever arising.
- interfere with or disrupt the Swrve Service or servers or networks connected to the Swrve Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Swrve Service;
- attempt to gain unauthorized access to the Swrve Service or its related systems or networks;
- violate any applicable local, state, national or international law or regulation; or
- exploit any integration with Third Party Services to carry out any of the above actions.
You may not
- copy, modify or create derivative works of the Swrve Service or portions thereof;
- reverse engineer or access the Swrve Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Swrve Service;
- disclose or allow access to the Swrve API to any third party except to your authorized contractors who are assisting you in the development, enhancement or maintenance of your app and subject to such authorized contractors being subject to the confidentiality obligations set out in section 9;
- distribute the Swrve Integration Code in any form other than executable, object code form, compiled into your app;
- disclose the results of any quality, benchmark or performance testing of the Swrve Service to any third party without our prior written approval;
- work around any technical limitations in the Swrve Service;
- license, sublicense, rent, lease, modify, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Swrve Service in any way;
- allow access to, publicly perform or display the Swrve Service other than to your employees or authorized contractors to whom we or your administrator users have issued usernames and login details;
- process Personal Data via the Swrve Service without putting us on notice of such processing in the manner required by section 4 (Data);
- use or attempt to use the Swrve Service in violation of third party rights of any kind, including without limitation any privacy, intellectual property, confidentiality or contractual rights; or
- transfer, sublicense or assign the benefits or burden of this Agreement to any third party.
Use of the Swrve Service is strictly subject to the Swrve Service Limits which can be found on our Platform, which may be updated from time to time.
If you discover any unlawful material or activity that breaches these TOS please let us know by email at email@example.com
8 OWNERSHIP; FEEDBACK
The Swrve Service is owned by us and our licensors and is protected by copyright and other intellectual property laws. This Agreement is not a sale and 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. 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 herein are reserved by us. Swrve reserves all rights not expressly granted therein.
We encourage you to provide feedback on errors or quality issues and suggestions for the improvement of the Swrve Service. You agree that we may use feedback that you provide to us in any way, including in future enhancements and modifications to the Swrve Service. You grant to us a perpetual, worldwide, irrevocable, royalty free license to use, reproduce, modify, create derivative works of, distribute, and display the feedback for any purpose.
The Swrve Service, including the ideas and concepts contained therein and the documentation accompanying the Swrve Service, constitutes confidential information of ours. 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.
Developer Edition and temporary licenses: Access is on a month-to-month basis and either party may terminate access at any time by giving email notice to the other.
All other Editions: The Term will be as outlined in your Commercial Terms. On expiration of the initial contract term, the Agreement will automatically renew for annual periods unless either party gives the other not less than thirty (30) calendar days’ email notice of its intention not to renew, in which case the contract will terminate as of the following renewal date.
Please send any contract requests to firstname.lastname@example.org.
Termination by You for Cause
You may terminate this Agreement for cause: (i) upon 30 days written notice to us of a material breach if such breach remains uncured at the expiration of such period, or (ii) if we become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Upon any termination for cause by you, we shall give you a refund of any prepaid fees pro-rated to the effective date of termination.
Termination by Us for Cause
This Agreement and your right to use the Swrve Service shall terminate automatically without liability to you if you breach any part of this Agreement or if you become insolvent. In this case, no refund of pre-paid fees will be provided by us.
If you are late making payment of applicable fees, we will notify you and you will have fifteen (15) days to remedy such late payment. If you have not made payment within that period, we may terminate your access to the Swrve Service without liability to you.
If you are in breach of any of the terms of this Agreement, we may suspend access to the Swrve Service with no liability to you in addition to any other rights we have in law or equity.
Effects of Termination
Upon termination, you will stop using the Swrve Service and you acknowledge that we may terminate your account. On termination, you will remove the Integration Code from your app and cease all use of the Integration Code and Swrve API. Unless this Agreement has been terminated for your breach, insolvency or non-payment of fees, you need not remove the Integration Code from your app immediately but must do so within a reasonable period.
You must discontinue use and destroy and return all copies of the Swrve Service.
You acknowledge that, on termination of the Swrve Service, your users will no longer have access to any personalization features or customized versions of your app that were enabled by the Swrve Service.
Unless your access to the Swrve Service has been terminated for non-payment, insolvency or for breach of these TOS, we will maintain your User Data and app information for a period of not less than thirty (30) days and make it available to you to download in a format reasonably determined by us. If we terminate your access to the Swrve Service for non-payment or breach of these TOS, you should be aware that all User Data and app information may be deleted permanently and may not be retrievable.
We are not obliged to maintain User Data or app data for longer than thirty (30) days from when you cease the use of the Swrve Service or it has been terminated.
Where you access the Swrve Service on a temporary license, the Swrve Service is offered on an AS IS basis. For other users, provided that the Swrve Service Limits are complied with, we warrant that the Swrve Service will operate substantially and materially in accordance with its specifications and documentation on the Swrve Platform. Other than the express warranty set forth herein, SWRVE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SWRVE SERVICE AND REPORTS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SWRVE DOES NOT WARRANT THAT THE OPERATION OF THE SWRVE SERVICE 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 WILL BE COMPATIBLE WITH OR OPERATE IN THE HARDWARE, SOFTWARE, OR WEBSITE CONFIGURATIONS THAT YOU SELECT.
The Swrve Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY, FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Beta features and relevant Reports are provided on an AS IS basis, without warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose and non-infringement.
WE DO NOT WARRANT THAT REPORTS WILL BE ERROR-FREE.
Images, photos and other copyrighted materials may be provided via our Swrve SDK or “Conversations” feature. We have licensed these images and photos for Swrve’s use only. If you wish to re-use images, photos and other copyrighted materials, you are solely responsible for obtaining the rights to use such copyrighted materials. We do not warrant that we have obtained the rights for your use of such materials. For the avoidance of doubt, use of these images and photos is not required for normal operation of the Swrve Service, and they are provided as sample content only
YOU: By using the Swrve Service you warrant that your User Data does not breach the rights of any person or entity, including rights of publicity, privacy or under applicable data protection laws.
13 LIMITATION OF LIABILITY
IN NO EVENT SHALL SWRVE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR UNAUTHORIZED ACCESS TO DATA, LOSS, ALTERATION OR DESTRUCTION OF DATA OR INTERRUPTION OF BUSINESS, LOST PROFITS, LOSS OF USE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SWRVE SERVICE, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
DEVELOPER AND TEMPORARY ACCESS: IF WE ARE HELD LIABLE FOR ANY REASON UNDER THIS AGREEMENT OR IN RELATION TO THE SWRVE SERVICE, IN NO EVENT WILL OUR LIABILITY EXCEED US$10.00.
Nothing in these terms and conditions will limit or exclude any liability in a way that is not permitted under applicable law.
COMMERCIAL ACCESS: 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, 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 THE FEES ACTUALLY PAID TO SWRVE BY YOU IN RESPECT OF THE SWRVE SERVICE FOR THE PREVIOUS TWELVE (12) MONTHS.
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.
14 LICENSEE INDEMNIFICATION
Licensee will indemnify and hold harmless Swrve, its subsidiaries, affiliates and subcontractors (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) arising out of any claim, action, audit, investigation, inquiry or other proceeding that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (ii) any actual or alleged infringement of any Swrve or its licensors’ or providers of Third Party Services’ intellectual property or proprietary rights by you; (iii) any use of Swrve’s or its licensors’ intellectual property or technology in a manner not explicitly authorized by this Agreement; (iv) your failure to comply with any applicable laws and regulations in connection with your use of the Swrve Service or Third Party Services including any applicable data protection legislation or laws relating to direct marketing activities; (v) any violations of third party rights due to your use of the Swrve Service and Third Party Services; and (vi) any data, data processing instructions, data transfer instructions or integrations with Third Party Services requested in connection with the Swrve Service. The indemnification obligations set forth herein shall survive the termination of your use of the Swrve Service and/or the termination of this Agreement.
15 ENTIRE AGREEMENT
These TOS, the Commercial Terms (if any), the PTOS, the Data Protection Addendum (where signed and delivered to Swrve), the Privacy Statement, and the Swrve Service Limits constitute the complete and entire agreement of the parties and supersede all previous communications, oral or written, and all other communications between us relating to the use of the Swrve Services (the “Agreement”). No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.
If any provision of this Agreement is judged to be unenforceable, that provision shall be amended to the extent necessary to make it enforceable. The failure of Swrve to enforce any right or provision of this Agreement shall not constitute a waiver of such right unless agreed to be Swrve in writing.
17 APPLICABLE LAW
United States. If you are based in North America, the laws of the State of California shall govern the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles and the parties hereto submit to the exclusive jurisdiction of the courts located in San Francisco, California.
Outside the United States. If you are based outside of North America, the laws of Ireland apply and the parties hereto submit to the exclusive jurisdiction of the courts located in Dublin, Ireland.
The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of this Agreement.