PLATFORM TERMS & CONDITIONS

Last Updated: June 11, 2024

These SWARM Engineering, Inc. (“SWARM”) Platform Terms & Conditions (this “Agreement”) in effect as of June 11, 2024, are effective between that person who accepts the terms of this Agreement (the “Customer”) and SWARM as of the date of the Customer’s acceptance of this Agreement. Customer (a) entering into a master services agreement (“MSA”) or an order form for Services (“Order Form”) that incorporates this Agreement by reference; (b) creating an account, or access, or use of the Services (regardless of whether Customer creates an account with SWARM); or (c) clicking the checkbox next to “Accept Terms & Conditions” in conjunction with Customer clicking “REGISTER” in SWARM’s online, internet-based software application (swarmeng.net) (the “Software”) shall constitute Customer’s acceptance of the terms of this Agreement. If there is an active MSA or Order Form in place between Customer and SWARM, terms or clauses in the MSA or Order Form will control in the case of any conflicting terms in this Agreement, but all other non-conflicting terms and conditions in this Agreement will remain in full effect.

1. SERVICES. During the Term (as defined below), SWARM may, as applicable, provide Customer the following services (the “Services”): (a) a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license to use the SWARM Challenge Modeler; (b) a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license to use the SWARM Agrifood Virtual Advisor (“AVA”); (c) as applicable and as available, user manuals and other materials, including updates thereto, made generally available by SWARM regarding the Software (the “Documentation”); (d) for Customers with an MSA or Order Form, a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license to use the SWARM Operator Dashboard; and/or (e) implementation, integration, tuning, enhancement, consulting and similar professional services (the “Professional Services”).

2. PAYMENT. Customer agrees to pay any fees or other incurred charges that apply to Customer’s Services. Except as otherwise specified in this Agreement or in an MSA or Order Form, fees are based on Services purchased and not actual usage or Services provided; payment obligations are non-cancelable; fees paid are non-refundable; and the Services purchased cannot be decreased during the Term. When Customer signs up for the Services, Customer may be required to designate and provide information about Customer’s preferred payment method (“Payment Method”). This information must be complete, accurate, and valid, and Customer is responsible for keeping it up to date. For paid subscriptions, SWARM will automatically charge Customer’s Payment Method on each applicable billing period. Customer expressly authorizes SWARM to collect via credit card or automatic debit or ACH from Customer’s Payment Method the appropriate fees charged for the Services. Alternatively, Customer may receive invoices for Customer’s Services. Payment for the Services shall be due in accordance with the terms of the applicable ordering method, including an Order Form or MSA. Notwithstanding anything herein to the contrary, if Customer does not pay the fees or charges due for Customer’s use of the Services, and such failure to pay has not been cured within seven (7) days of the due date, SWARM may terminate Customer’s access to the Services and this Agreement immediately for cause. However, SWARM reserves the right to disable Customer’s access to the Services immediately without notice until paid in full, and without any liability to the Customer or any other party. Customer’s failure to make a timely payment will be a material breach of this Agreement. Any payments received by SWARM more than seven (7) days after a due date may be subject to a service charge on the unpaid amount of one and one-half percent (1.5%) per month, which service charge shall be immediately due and payable. SWARM shall be entitled to all costs and expenses, including reasonable attorneys’ fees, incurred in connection with the collection of any overdue amounts owed by Customer. Payments are non-refundable, except where required by law. SWARM may change its prices from time to time. Customer shall reimburse SWARM for all Customer pre-approved travel expenses or other expenses incurred by SWARM’s employees, representatives or consultants in the performance of the Services, which expenses shall be billed by SWARM at cost and with no mark-up.

3. TAXES. Unless otherwise stated in this Agreement, SWARM’s fees for the Services do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s applicable Services, excluding taxes based on SWARM’s net income or property. If SWARM has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides SWARM with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. OWNERSHIP OF PROPERTY. SWARM reserves all rights, title, and interest in and to the Services, Software, Documentation, and related personal and intellectual property rights and Confidential Information (as defined below), including, without limitation, all equipment, facilities, supplies, documentation, trademarks, patents, copyrights, software, use licenses, and other items and materials together with all improvements, derivatives, modifications, enhancements, continuations, and continuations in-part thereto (collectively, the “Intellectual Property”). Customer shall have no interest of any kind in, to and/or under the Intellectual Property, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in SWARM by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to SWARM all rights, title, and interest which Customer may have in to such refinements and improvements. Except as otherwise explicitly provided herein, Customer shall not (and also will not permit or authorize any third party to): (a) modify, copy, alter, duplicate, download, display, transmit, distribute, reverse engineer, access, decompile, disassemble, or create derivative works based on or using the Services, Software, Documentation, SWARM’s system or methods, or the Intellectual Property in any form or media or by any means; (b) frame or mirror any content forming part of the Services, Software, or Documentation; (c) access or use Services, Software, or Documentation in order to (1) build a competitive product or service or (2) copy any ideas, methods, features, functions, or graphics of the Services, Software, or Documentation; (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit any part of the Services, Software, or Documentation, or otherwise make any part of the Services, Software, or Documentation available to any third party; (e) circumvent or disable any security or other technological features or measures of the Software; or (f) remove or otherwise transfer any Intellectual Property from the original installation location except by prior written consent of SWARM. Customer shall exercise reasonable care in the use of the Intellectual Property and will be responsible for all loss and/or damage to the Intellectual Property resulting from any action or inaction of any owner, director, officer, employee, representative or agent of Customer.

5. INFRINGING CONTENT; DIGITAL MILLENNIUM COPYRIGHT ACT.

5.1 Infringing Content. SWARM reserves the right to remove any Customer Content (as defined below) that is alleged to infringe the copyright of a third party or otherwise violates any third-party rights and/or to suspend or terminate this Agreement in the event of infringement by Customer. If Customer is a copyright owner or authorized agent and believes that Customer’s work has been copied and posted in the Services in a way that constitutes copyright infringement, or if Customer believes that Customer’s rights has otherwise been violated by the Services, Customer may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing SWARM’s Copyright Agent (as defined below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or the person whose rights have been violated; (b) a description of the copyrighted work that Customer claims has been infringed or the particular rights violated; (c) if applicable, a description of where the material that Customer claims is infringing is located in the Services; (d) Customer’s address, telephone number, and email address; (e) a written statement by Customer that Customer has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law or with regard to the rights violated; and (f) a statement by Customer, made under penalty of perjury, that the above information in Customer’s notice is accurate.

5.2 DMCA. SWARM can receive notifications of claimed infringement (“Copyright Agent”) at legal@swarm.engineering or by mail at 5319 University Dr, PMB 7214, Irvine, CA 92612, USA. If Customer believes that the Customer Content that was removed (or to which access was disabled) is not infringing, or that Customer has the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use Customer Content, Customer may send a counter-notice pursuant to the DMCA containing the following information to the Copyright Agent: (a) Customer’s physical or electronic signature; (b) identification of Customer Content that has been removed or to which access has been disabled and the location at which the Customer Content appeared before it was removed or disabled; (c) a statement that Customer has a good faith belief that the Customer Content was removed or disabled as a result of mistake or a misidentification of the Customer Content; and (d) Customer’s name, address, telephone number, and email address, a statement that Customer consents to the jurisdiction of the federal court in California, and a statement that Customer will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, SWARM may, in SWARM’s sole discretion, send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Customer Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Customer Content provider or Customer, the removed Customer Content may be replaced, or access to it restored.

6. CUSTOMER CONTENT.

6.1 Ownership in Customer Content. SWARM reserves all rights, title, and interest in and to all text, files, images, photos, video, sounds, musical works, data, works of authorship, communications, or any other materials (collectively, “Content”) in or on the Software and/or Services, except for electronic data or information submitted, uploaded, or hydrated by Customer to the Software and/or through the Services (“Customer Generated Content”). As between SWARM and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Generated Content. SWARM reserves the right to remove such Content, Customer Generated Content and/or any other content in SWARM’s sole and absolute discretion. In addition, the Software and/or Services may contain Content, under license to SWARM from one or more third parties, in which Customer is featured and/or visible or which includes Customer’s name, nickname, professional name, image, likenesses, other identifications, and biographical material (“Customer Featured Content” and together, with Customer Generated Content, “Customer Content”).

6.2 Customer’s Warranties in Customer Content. Customer represents and warrants to SWARM that: (a) Customer has the legal right to post or transmit the Customer Generated Content in accordance with the terms of this Agreement, and (b) the posting or other transmission of the Customer Generated Content on or through the Services or Software or otherwise by SWARM or SWARM’s licensees, distributors, agents, independent contractors, representatives and other authorized users does not violate the privacy rights, publicity rights, intellectual property rights (copyrights, patents, trademarks), contract rights or any other rights of any person or entity. Customer has no agreement with or obligations to any third party with respect to the rights herein granted which conflict or interfere with or adversely affect any of the provisions of this Agreement or the use or enjoyment by SWARM of any of the rights herein granted. Customer has secured and will maintain all rights necessary for SWARM to use and enjoy the rights herein granted. Customer has not sold, assigned, transferred or conveyed, and will not sell, assign, transfer, or convey, to any party any right, title, or interest in and to the rights herein granted or any part thereof, adverse to or in derogation of the rights herein granted to SWARM. If Customer is under eighteen (18) years of age, Customer further warrants and represents that Customer either is an emancipated minor, or possesses legal parental or guardian consent to enter into this Agreement and use the Services. Customer agrees to pay for all royalties, fees, and any other monies owing to any person or entity by reason of any Customer Content posted by Customer to or through the Services.

7. CUSTOMER CONDUCT.

7.1 Prohibited Uses of Software and Services.  Customer is responsible for Customer’s use of the Software. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Generated Content; (ii) prevent unauthorized access to, or use of, the Software, and notify SWARM promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Software. Customer shall use the Software and Services solely for its internal business purposes as contemplated by this Agreement. Customer agrees not to use the Services or the Software to take any action(s) that (and Customer’s continued use of the Software and Services are conditioned on not taking any action(s) that): (a) are patently offensive and promote racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person or group; exploits people in a sexual or violent manner; or contains nudity, violence, or offensive subject matter or contains a link to an adult website; (b) solicits personal information; provides any Customer telephone numbers, street addresses, last names, URLs or email addresses; involves the transmission of “junk mail,” “chain letters,” or “unsolicited mass mailing”, “instant messaging”, “phishing”, “spimming” or “spamming”; contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); (c) promotes information that Customer knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or video or links to pirated files; (d) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (e) involves commercial activities and/or sales without SWARM’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (f) are contrary to SWARM’s public image, goodwill, or reputation; (g) infringe on SWARM’s or any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (h) express or imply that any of Customer’s statements, activities or causes are endorsed by SWARM, without SWARM’s prior written consent in each instance; (i) transmit any trade secret or other material, non-public information about any person, company or entity without the authorization to do so; (j) “frame” or “mirror” any part of the Services without SWARM’s prior written authorization; (k) distribute any virus, worm or other similar or deleterious files, scripts or programming routines; (l) interfere with or disrupt any services or equipment with the intent of causing an excessive or disproportionate load on the infrastructure of SWARM or SWARM’s licensors or suppliers; (m) forge headers or otherwise manipulate identifiers in order to disguise the origin of any submission; (n) execute any form of network monitoring or run a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the SWARM’s servers or any data not intended for Customer; (o) attempt to or assist anyone to reverse engineer, decompile or discover the source code or underlying components of the Services, including SWARM’s models, algorithms, or systems (except to the extent this restriction is prohibited by applicable law); (p) automatically or programmatically extract data from the Services, Software or any other outputs or represent that any outputs were human generated when they were not; (q) interfere with or disrupt the Services, including circumventing any rate limits or restrictions or bypassing any protective measures or safety mitigations we put on the Services; (r) use any outputs, data, or components of the Software or Services as a reference point or as a basis to develop a model or product that is competitive with SWARM; (s) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software or Services available to any third party; and/or (t) attempt to gain unauthorized access to the Software or Services or their related systems or networks. Customer must be at least 18 years old, or the minimum age required in Customer’s country, to consent to use the Services in this Agreement, otherwise if Customer is under 18, Customer must have Customer’s parent or legal guardian’s permission to use the Services. Customer must provide accurate and complete information to register for an account to use the Services. Customer may not share Customer’s account credentials or make Customer’s account available to anyone else and are responsible for all activities that occur under Customer’s account. If Customer creates an account or uses the Services on behalf of another person or entity, Customer must have the authority to accept these Terms on their behalf. Further, Customer agrees not to use the Services to participate in: (1) criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or violation of the privacy or publicity rights of third parties and (2) advertising to, or solicitation of, any Customer to buy or sell any products or services through the Services. It is also a violation of these rules to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any customers without their prior explicit consent. In order to protect Customer from such advertising or solicitation, SWARM reserves the right to restrict the number of emails that a customer may send to other customers.

7.2 Other Prohibited Uses of Services and Termination of Services. Customer agrees not to attempt to impersonate another customer or other individual. SWARM cannot guarantee the security of any information Customer discloses; Customer makes such disclosures at Customer’s own risk. SWARM reserves the right, in SWARM’s sole discretion, to reject, refuse to post or remove any posting by Customer. Additionally, SWARM may review Customer’s use of Services, Software, and/or Documentation and determine in SWARM’s sole discretion whether the manner in which Customer is using Services, Software, and/or Documentation is prohibited. Upon any determination that a particular use is prohibited, SWARM shall have the right to terminate this Agreement immediately for cause.

8. PUBLICITY; TRADEMARKS. Neither party may issue press releases or any other public announcement of any kind relating to the terms of an MSA or Order Form without the other party’s prior written consent. Customer grants SWARM the right to gather data from the Software being used by Customer in connection with the Services for SWARM’s purposes. SWARM may use Customer demographic data collected from the Software and/or Customer (excluding personal health information) on an anonymized basis in case studies and research created by SWARM. SWARM may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Services. Except as set forth herein, Customer may not use the trademarks and trade names of SWARM without the prior written consent of SWARM.

9. CONFIDENTIALITY. The Receiving Party (as defined below) shall not disclose or use any Confidential Information of the Disclosing Party (as defined below) for any purpose outside the scope of the terms herein, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services which such employees and contractors shall be bound by the confidentiality obligations herein. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section 9 shall continue indefinitely and in perpetuity after such expiration or termination. “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), including all such information to which the Receiving Party has access through the Disclosing Party, unless such information is designated in writing as non-confidential or is described below as being excluded from the definition of Confidential Information. Confidential Information shall expressly include, without limitation, the terms of any MSA or Order Form (including fees and other terms), provision of Services, the Software, the Documentation, product plans, business and marketing plans, business model, technology and technical information, product designs, business processes, Customer Generated Content, and any information about the Disclosing Party’s customers, affiliates, or licensors. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party after such party and the potential purchaser or successor have entered into a customary agreement prohibiting disclosure of Confidential Information. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.

10. WARRANTIES & DISCLAIMERS.

10.1 SWARM Warranties. SWARM represents to Customer that SWARM has the authority to enter into and perform SWARM’s obligations under this Agreement. SWARM represents and warrants that it owns or otherwise has sufficient rights in the Services to grant Customer the rights to use the Services. As applicable, any Professional Services provided by SWARM will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards, and, for any breach of the warranty for Professional Services, Customer’s exclusive remedy, and SWARM’s entire liability, shall be the re-performance of the Professional Services.

10.2 Customer Warranties. Customer represents to SWARM as follows: (a) Customer has the authority to enter into and perform Customer’s obligations under this Agreement; (b) the Customer Content does not violate, infringe upon, or misappropriate the intellectual property rights, or any other right, of any third party; (c) there are no existing or threatened claims or litigation which would materially adversely affect or materially adversely impair Customer’s ability to perform under this Agreement; (d) Customer has no agreement with or obligations to any third party with respect to the rights herein granted which conflict or interfere with or adversely affect any of the provisions of this Agreement or the use or enjoyment by SWARM of any of the rights herein granted; (e) Customer has not sold, assigned, transferred or conveyed, and will not sell, assign, transfer, or convey, to any party any right, title, or interest in and to the rights herein granted or any part thereof, adverse to or in derogation of the rights herein granted to SWARM; and (f) Customer shall not use the Services or Software in a manner that violates any international, federal, state, or local law or regulation.

10.3 Accuracy, Reliance, and Recommendations Disclaimer. Artificial intelligence and machine learning are rapidly evolving fields of study. SWARM is constantly working to improve its Services to make them more accurate, reliable, safe, and beneficial. Given the probabilistic nature of machine learning, use of SWARM’s Services may, in some situations, result in outputs that do not accurately reflect real people, places, or facts. SWARM’s Services and Software, including but not limited to AVA, can generate responses, statements, analyses, comprehensions, summaries, and other information (“Output”) for Customer. Customer understands that Outputs generated by the Services should not be relied upon nor deemed to be factually correct. Customer should not rely on any generated Outputs or responses from the Services or Software as a source of truth, as factual information, or as professional advice. Customer must evaluate the Outputs for accuracy and appropriateness before using or sharing any information or Outputs. Customer must not use any Outputs relating to a parson for any purpose that could have a legal or material impact on that person, such as making credit, educational, employment, housing, insurance, medical, legal, or other important decisions about them. SWARM’s Services may provide incomplete, incorrect, inappropriate, or offensive Outputs or content that does not represent SWARM’s views. If an Output represents any third-party products or services, it does not mean the third party endorses or is affiliated with SWARM. CUSTOMER ACCEPTS AND AGREES THAT ANY USE OF OUTPUTS FROM SWARM’S SERVICES OR SOFTWARE IS AT CUSTOMER’S SOLE RISK AND CUSTOMER WILL NOT RELY ON ANY OUTPUTS OR CONTENT AS A SOLE SOURCE OF TRUTH, AS FACTUAL INFORMATION, OR AS A SUBSTITUTE FOR PROFESSIONAL ADVICE.

10.4 General Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, SOFTWARE, AND DOCUMENTATION ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, AND SWARM EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, SOFTWARE, OR DOCUMENTATION WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS OR DELAYS AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, SOFTWARE, OR DOCUMENTATION, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY SWARM. SWARM SHALL NOT BE RESPONSIBLE OR HAVE ANY LIABILITY FOR THE PROCUREMENT, INSTALLATION, OR MAINTENANCE OF ANY EQUIPMENT ON WHICH THE SERVICES, SOFTWARE, OR DOCUMENTATION ARE ACCESSED BY CUSTOMER.

11. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL SWARM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SWARM FOR THE SERVICES IN THE THREE (3) MONTHS PRECEDING THE INITIAL INCIDENT GIVING RISE TO LIABILITY OR ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL SWARM HAVE ANY LIABILITY FOR ANY LOST PROFITS OR LOST REVENUE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SWARM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO CLAIM MAY BE BROUGHT BY CUSTOMER UNDER THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CLAIM, WHETHER CUSTOMER HAD ACTUAL KNOWLEDGE OF THE CLAIM OR SHOULD HAVE KNOWN.

12. NOTICES. All notices by SWARM to Customer under this Agreement shall be provided and deemed to be given upon SWARM posting a notice on the SWARM website or Software, or by sending a mail parcel or email to the relevant address or email address associated with Customer’s account. Notices to SWARM shall be in writing, addressed to SWARM’s corporate headquarters (unless otherwise designated in writing by SWARM), and deemed to have been given upon the second business day after mailing.

13. TERM & TERMINATION; INDEMNIFICATION.

13.1 Term of this Agreement. The term of this Agreement shall be (the “Term”): (a) in the case of an MSA or Order Form, the term set forth therein or (b) in the absence of an MSA or Order Form, the term of this Agreement will commence as of the date of Customer’s acceptance of this Agreement and continue indefinitely until terminated and be subject to periodic fee or pricing adjustments. Except as otherwise stated herein or in an MSA or Order Form, as applicable, this Agreement shall terminate upon the conclusion of the Term. Notwithstanding anything to the contrary, any fees or other incurred charges that apply to the Customer’s Services during a renewal term shall be automatically adjusted to SWARM’s then prevailing fees for the Services upon the commencement of the renewal term. Following the expiration or termination of this Agreement, SWARM shall (i) convert Customer’s account to an inactive status and (ii) have no obligation to save Customer Content. 

13.2 Termination for Convenience. If Customer is not a party to an MSA or Order Form, SWARM may terminate this Agreement at any time and for any reason or no reason, upon written notice to Customer (a “Termination for Convenience”). On or before the date of Termination for Convenience, Customer shall pay SWARM all amounts owed for all Services performed through the date of such Termination for Convenience, together with all applicable penalties, fees (including reasonable attorneys’ fees), costs, interest, and expenses, including reasonable collection fees and costs.

13.3 Termination for Cause. A non-breaching party may terminate this Agreement for cause: (a) if the breaching party fails to cure a material breach within twenty (20) days following written notice of such material breach; (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (c) pursuant to Section 2 herein; (d) pursuant to Section 5 herein or (d) pursuant to Section 7 herein. Upon any termination for cause by Customer, SWARM shall refund Customer any prepaid fees covering the remainder of the Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any amounts owed to SWARM prior to the date of termination. Upon any termination for cause by SWARM, Customer shall remain obligated to pay all fees owed for the remainder of the Term, which shall become immediately due and payable in full, together with all applicable penalties, fees (including reasonable attorneys’ fees), costs, interest, and expenses, including reasonable collection fees and costs.

13.4 Indemnification. Customer shall defend, indemnify, and hold SWARM harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings made or brought against SWARM arising from or related to: (a) Customer’s breach of the of the terms herein; (b) the acts or omissions of Customer and/or Customer’s employees, agents, contactors, volunteers, or representatives in connection with Customer’s installation, operation, access to, and/or use of the Services, Software, or Documentation; (c) the violation, infringement, or misappropriation by Customer or any employee, agent, contactor, volunteer, or representative of Customer of the Intellectual Property or Confidential Information of SWARM or any intellectual property or confidential information of any third parties; (d) Customer’s negligence or willful misconduct; (e) Customer Generated Content, and/or any materials provided to SWARM necessary to perform the Services, infringe the intellectual property rights of a third party;  or (f) SWARM’s use, in connection with its provision of the Services, of any Customer Generated Content otherwise harming a third party.

14. RESTRICTIONS. Customer shall not (a) allow third parties or develop methods for third parties to use the Services, Software, or Documentation; (b) except as provided by applicable law, decompile, disassemble, or reverse engineer the Software, in whole or in part, and Customer shall not attempt to obtain in any other manner any Software source code, and shall not carry out any action to the detriment of any intellectual property rights of SWARM; (c) make copies, execute, publish, or reproduce Software or Documentation, unless expressly authorized herein (and all copies must maintain all copyright notices); (d) develop any derivative works or any type of software program based on the Software, the Documentation, or any other Confidential Information; (e) make available, reveal, disclose, offer, or allow the use of Software by third parties, without the prior written consent of SWARM; (f) alter or modify the Software without the prior written consent of SWARM; (g) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Software, including without limitation any mechanism used to restrict or control Software functions; (h) provide or offer access to any third party to any restricted online access keys or authentication passwords provided by SWARM in connection with the Software; or (i) disclose to any third party any benchmarking or comparative study involving the Software or Documentation.

15. CHANGES. SWARM, in SWARM’s sole discretion and without liability to Customer or any third party, may from time to time: (a) change or alter any aspect of the Services, Software, and/or Documentation; (b) make enhancements, updates, and upgrades to the Services, Software, and/or Documentation as SWARM deems necessary or desirable; (c) make changes in the titles, names, format, features, functions, process, organization, or content of the Services, Software, and/or Documentation or a portion thereof; and/or (d) alter the existing methods and/or manner of disseminating the Services, Software, and/or Documentation (collectively, “Changes”). Customer shall comply with such Changes. SWARM shall endeavor to use reasonable efforts to provide Customer with notice of any material Changes unless a malfunction in SWARM’s system requires otherwise or circumstances preclude notice.

16. DISPUTE RESOLUTION. CUSTOMER AND SWARM AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS.

16.1 Mandatory Arbitration. Customer and SWARM agree to resolve any claims arising out of or relating to this Agreement or the Services or Software, regardless of when the claim arose, even if it was before the terms of this Agreement existed (a “Dispute”), through final and binding arbitration. Customer may opt out of arbitration within 30 days of account creation or of any updates to these arbitration terms within 30 days after the update has taken effect by filling out the Contact Us form on the SWARM website. If Customer opts out of an update, the last set of agreed upon arbitration terms will apply.

16.2 Informal Dispute Resolution. SWARM would like to understand and try to address Customer’s concerns prior to formal legal action. Before either Customer or SWARM files a claim against the other, SWARM and Customer both agree to try to resolve the Dispute informally. Customer agrees to do so by sending SWARM a notice through the Contact Us form. SWARM will do so by sending Customer notice to the email address associated with Customer’s account. If SWARM is unable to resolve a Dispute within 60 days, either party has the right to initiate arbitration. Customer and SWARM also both agree to attend an individual settlement conference if either party requests one during this time. Any statute of limitations will be tolled during this informal resolution process.

16.3 Arbitration Forum. If SWARM and Customer are unable to resolve the Dispute, either may commence arbitration with National Arbitration and Mediation (“NAM”) under its Comprehensive Dispute Resolution Rules and Procedures and/or Supplemental Rules for Mass Arbitration Filings, as applicable. The activities described in this Agreement involve interstate commerce and the Federal Arbitration Act will govern the interpretation and enforcement of these arbitration terms and any arbitration.

16.4 Arbitration Procedures. The arbitration will be conducted virtually by video conference, if possible, but if the arbitrator determines a hearing should be conducted in person, the location will be in San Francisco, California. The arbitration will be conducted by a sole arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California. The arbitrator will have exclusive authority to resolve any Dispute, except the state or federal courts of San Francisco, California have the authority to determine any Dispute about enforceability, validity of the class action waiver, or requests for public injunctive relief, as set out below. Any settlement offer amounts will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any. The arbitrator has the authority to grant motions dispositive of all or part of any Dispute.

16.5 Exceptions. This Section 16 does not require informal dispute resolution or arbitration of the following claims: (a) individual claims brought in small claims court and (b) injunctive or other equitable relief to stop unauthorized use or abuse of the Services or intellectual property infringement or misappropriation.

16.6 Class and Jury Trial Waivers. Customer and SWARM agree that Disputes must be brought on an individual basis only and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, and representative actions are prohibited. Only individual relief is available. The parties agree to sever and litigate in court any request for public injunctive relief after completing arbitration for the underlying claim and all other claims. This does not prevent either party from participating in a class-wide settlement. Customer and SWARM knowingly and irrevocably waive any right to trial by jury in any action, proceeding, or counterclaim.

16.7 Batch Arbitration. If 25 or more claimants represented by the same or similar counsel file demands for arbitration raising substantially similar Disputes within 90 days of each other, then Customer and SWARM agree that NAM will administer them in batches of up to 50 claimants each (“Batch”), unless there are less than 50 claimants in total or after batching, which will comprise a single Batch. NAM will administer each Batch as a single consolidated arbitration with one arbitrator, one set of arbitration fees, and one hearing held by video conference or in San Francisco, California, for each Batch. If any part of this Section 16 is found to be invalid or unenforceable as to a particular claimant or Batch, it will be severed and arbitrated in individual proceedings.

16.8 Severability. If any part of these arbitration terms is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class arbitration, class action, or representative action, this entire dispute resolution section will be unenforceable in its entirety.

17. RESERVATION OF RIGHTS. SWARM hereby expressly reserves any and all rights, licenses, and permissions in and to the Services, Software, and Documentation other than those limited rights explicitly provided to Customer, if any, in accordance with the terms herein.

18. REDISTRIBUTION. Customer shall not redistribute any Services, Software, or Documentation, or otherwise make Services, Software, or Documentation available, to any person other than as this Agreement permits.

19. CALIFORNIA CUSTOMERS.

19.1 California Civil Code Section 1542. Customer waives Customer’s rights with respect to California Civil Code Section 1542, which states “a general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

19.2 California Civil Code Section 1789.3. Under California Civil Code Section 1789.3, California customers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.

20. CALIFORNIA PRIVACY RIGHTS.

20.1 California Privacy Generally and Personal Information. The California Consumer Privacy Act (“CCPA”) gives California Customers certain rights to Personal Information (as defined below) that SWARM has collected. Under California law, the exercise of these rights is subject to certain exemptions to safeguard public interests (such as the prevention or detection of crime) and SWARM’s interests (such as maintaining confidentiality when legally required). SWARM will comply with Customer’s request as soon as reasonably practicable. Requests to exercise Customer’s rights may be granted in whole, in part, or not at all, depending on the scope and nature of the request and applicable law. To prevent unauthorized access to Customer’s Personal Information, SWARM takes steps to verify a Customer’s right to the data. Following verification of Customer’s identity, SWARM will notify Customer if SWARM is unable to fulfill Customer’s request and outline the reasons SWARM is unable to honor Customer’s request at this time. Personal Information is data relating to a Customer that can be used to help uniquely identify such Customer, either directly or indirectly, and may include: a name, username, home and email addresses, phone number, age, date of birth, gender, passport number, driver’s license or state identification number, credit or debit card information, certain cookie and network identifiers, device identifications, Customer Featured Content, Customer Generated Content, Customer Content, information about the Services Customer uses, Customer’s interaction with the Services, Customer’s internet browsing history, Customer’s search history, and other Customer information as may be updated from time to time (the “Personal Information”).

20.2 Use of Personal Information. SWARM may use Personal Information: (a) to provide, improve and create new Services; (b) to respond to Customer’s inquiries and to send Customer administrative communications about the Services; (c) to obtain Customer’s feedback about the Services; (d) to send Customer secure electronic messages and personalized emails pertaining to Customer’s interests as inferred from Customer’s use of the Services; (e) to statistically analyze trends and user behavior and activity regarding the Services; (f) to determine how the Services are being used; (g) to provide Customer and people with similar demographic characteristics and interests with more relevant content; (h) to offer lead generation services; (i) to detect and defend against fraud and other threats to the Services and Customers; (j) to identify issues with the Services; (k) to conduct research and measurement activities; (l) to administer Customer’s account; and (m) for other purposes as may be updated from time to time.

20.3 Sharing Personal Information. SWARM may share Customer’s information with its subsidiaries, affiliates and companies acquired by or merged with SWARM and SWARM’s affiliates. SWARM may work with third party companies that help SWARM provide the Services. These companies may sometimes have limited access to Customer information in the course of providing products or services to SWARM.

20.4 Customer’s Rights. Customer has the right to: (a) ask SWARM for confirmation on whether SWARM is processing Customer’s Personal Information, and if Customer can access such Personal Information as permitted by law (this may include what Personal Information SWARM collects, uses, or discloses about Customer); (b) ask SWARM to delete Customer Personal Information, as permitted by law; and (c) opt-out of certain data sharing practices with third parties who may use Customer Personal Information solely for their own purposes (Customer’s right to opt-out is limited to information SWARM sells to these third parties, if any, which means the disclosure of data, including technical device data that does not identify Customer directly, when a third party might use that data for its own purposes, such as for personalized advertising). Additionally, California Civil Code Section 1798.83 permits California Customers to request and obtain from SWARM a list of what Personal Information, if any, SWARM disclosed to third parties for that third party’s direct marketing in the preceding calendar year, as well as the names and addresses of those third parties. SWARM will not discriminate against Customer, in terms of price or the Services that SWARM offers, if Customer submits one of the rights requests listed in this Section 20. To exercise Customer’s rights to Customer’s Personal Information or for instructions on how to exercise Customer’s rights, please contact using SWARM’s Contact Us form.

21. PRIVACY OF MINORS AND CHILDREN. SWARM complies with the Children’s Online Privacy Protection Act, which requires the consent of a parent or guardian for the collection of personally identifiable information from children under thirteen (13) years of age. SWARM does not knowingly collect, use or disclose personal information from children under thirteen (13), or equivalent minimum age in the relevant jurisdiction, without verifiable parental consent. However, it is possible that SWARM may inadvertently receive information pertaining to children under thirteen (13). If Customer believes that SWARM has received information about Customer’s child who is under the age of thirteen (13), please do not hesitate to notify SWARM. When SWARM receives Customer’s notification, SWARM will obtain Customer’s consent to retain the information or will delete it permanently. For purposes of the CCPA, SWARM does not sell the personal information of consumers that SWARM knows are minors under 16 years of age without affirmative authorization as required under the CCPA.

22. NON-SOLICITATION OF EMPLOYEES. During the Term and for a period of one (1) year from the date of termination of this Agreement, Customer will not solicit or cause to be solicited for employment, directly or indirectly, any person who is employed by SWARM. Notwithstanding the foregoing, Customer may solicit and hire such person through general public advertisements that are not primarily targeted at such person.

23. FORCE MAJEURE. If SWARM is rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Agreement, SWARM shall give Customer notice of the Force Majeure with reasonably full particulars concerning it. Thereupon the obligations of SWARM, so far as they are affected by the Force Majeure, shall be suspended during, but no longer than, the continuance of the Force Majeure. SWARM shall use all reasonable diligence to remove the Force Majeure as quickly as possible. The term “Force Majeure” shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, pandemic, lightning, fire, storm, flood, failure of utilities, failure of Internet Collocation Facilities or other Internet failure, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of SWARM.

24. GENERAL PROVISIONS. The parties are strictly and solely independent contractors. There are no third-party beneficiaries to this Agreement. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. The provisions of this Agreement and the provisions herein are severable and the unenforceability of any provision shall not affect the validity or enforceability of such other provisions. Customer may not assign this Agreement, including by operation of law, without the prior written consent of SWARM. This Agreement is and shall be deemed to have been made in California and shall be governed exclusively by the internal laws of the State of California, without regard to conflicts of laws rules (including California’s). Any claims relating to this Agreement shall be brought in a federal court located in the Northern District of California, or in a state court located in San Francisco, California and each party hereby consents to the exclusive personal and subject matter jurisdiction of such courts. Each party affirmatively opts out of all applicable international treaties or agreements related to governing law, jurisdiction, or venue that would result in governing law, jurisdiction, or venue being other than as stated in this Agreement. Each party also waives any right to a jury trial in connection with this Agreement. If either party hereto resorts to legal action for the redress of a breach of this Agreement, the prevailing party shall be entitled to an award of all costs and reasonable attorneys’ fees. The language used in this Agreement shall be deemed to be language chosen by both parties to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted or to any term or condition of this Agreement. Any provision of this Agreement that, by its nature, would survive termination of this Agreement, shall survive any such termination of this Agreement, including, without limitation, Sections 2, 3, 4, 6, 9, 10, 11, 13, 16, 22, and 24.

25. ENTIRE AGREEMENT & AMENDMENTS. This Agreement, together with the MSA and/or Order Form and all documents and agreements incorporated therein by reference, as applicable, and all schedules, exhibits, attachments, addenda, documents incorporated by reference, and amendments hereto and thereto, constitutes the entire agreement between the parties with respect to the subject matter herein and therein, supersedes all prior agreements, whether written or oral, and supersedes and merges all prior discussions between the parties. Except as otherwise set forth in this Agreement or in an MSA or Order Form with Customer, SWARM may modify this Agreement and its terms herein at any time by posting a revised version on SWARM’s website at https://swarm.engineering/terms-conditions or by otherwise notifying Customer in accordance with Section 12 of this Agreement. By continuing to use the Software or Services after the effective date of any such modifications to this Agreement, Customer agrees to be bound by this Agreement, as modified. The date this Agreement was last modified is set forth at the top of this Agreement.