SWIFT Customer Terms of Service
Last Updated: January 1, 2023
Table of Contents
1. Introduction
2. Definitions
3. Intellectual Property Rights
4. Customer’s Use of the Services
5. Fees, Payment, and Subscription Terms
6. Confidential Information
7. Personal Information Security and Privacy
8. Representations, Warranties, and Disclaimer
9. Indemnification
10. Limitations of Liability
11. Term, Termination, and Survival
12. General
1. Introduction
SWIFT SALES APPLICATIONS INC. (“SWIFT”) provides sales enablement software services and related services (the “Services”). These SWIFT Customer Terms of Service (“SWIFT Customer Terms”) are a binding legal commitment entered into between SWIFT and the individual or organization that orders any of the Services (“Customer”) from SWIFT through an Order Form (defined in Section 2 below). Sometimes in these SWIFT Customer Terms, SWIFT and Customer are referred to as a “party” or together, the “parties.”
Effective upon the date the parties enter into an Order Form, these SWIFT Customer Terms, together with any Order Form, constitute the “Agreement” between Customer and SWIFT.
2. Definitions
These SWIFT Customer Terms contain defined terms that have specific meanings. Some terms are defined in this Section 2 and some terms are defined in other sections of these SWIFT Customer Terms. A term is being defined when it has quotation marks around it. Defined terms are also capitalized when used in these SWIFT Customer Terms (except for “party” or “parties,” which are terms defined in Section 1 and are not capitalized when used in these SWIFT Customer Terms).
2.1 “Aggregated Data” means any data or data compilations aggregated, created, or derived by SWIFT, SWIFT’s affiliates, or third parties on SWIFT’s behalf, from Customer Content or the use of the Services by Customer or Users that has been anonymized or deidentified.
2.2 “Applicable Law” means any law that applies to Customer or SWIFT in a given circumstance, this includes laws, regulations, court orders, and arbitration determinations and agreements.
2.3 “Customer Content” means content or other information Customer or Users provide or make available to SWIFT in connection with Customer’s use of the Services at any time, including data, files, text, audio, video, graphics, or images, excluding Feedback.
2.4 “Feedback” means any suggestion, enhancement request, recommendation, correction change or other feedback regarding the SWIFT Property from any source, including Customer and Users.
2.5 “Personal Information” means information that identifies, relates to or could reasonably be linked, directly or indirectly, with a particular individual or household, excluding information publicly available from government records and anonymized, aggregated, or deidentified information even if such information was created or derived from personal information.
2.6 “Salesforce” means the websites (including https://www.salesforce.com/), products, and services offered by Salesforce, Inc. or any of its affiliates.
2.7 “Service Limit” means any limitation on Customer’s use of or access to the Services as set forth in an Order Form or reasonable policy set by SWIFT, such as limitations on number of Users.
2.8 “Order Form” means an order form specifying the Services to be provided by SWIFT and that is entered into between Customer and SWIFT.
2.9 “SWIFT Content” means content or other information created, derived, owned, or licensed by SWIFT that SWIFT makes available in connection with the Services at any time, including data, files, text, audio, video, graphics, or images.
2.10 “SWIFT Indemnitees” means SWIFT, SWIFT’s affiliates, and SWIFT’s third-party providers, licensors, and suppliers, along the respective directors, officers, employees, and agents of SWIFT, SWIFT’s affiliates, and SWIFT’s third-party providers, licensors, and suppliers
2.11 “SWIFT Property” means the Services and the SWIFT Content.
2.12 “User” means each user that Customer allow to access and use the Services on Customer’s behalf, such as Customer’s employees or consultants.
3. Intellectual Property Rights
3.1 SWIFT’s intellectual property rights. Between SWIFT and Customer, SWIFT owns or holds all right, title, and interest to the SWIFT Property, all components and derivative works of the SWIFT Property, and the copyrights, patents, trade secrets, trademarks, and other intellectual property rights pertaining to any aspect of the SWIFT Property. SWIFT reserves all rights in the SWIFT Property not expressly granted to Customer in this Agreement. Customer acquires no ownership interest, derivative work, or component of the SWIFT Property through Customer’s use of it. Customer is not granted right, title, or interest to use any trademark, service mark, logo, or trade name of SWIFT under this Agreement.
3.2 Customer’s ownership of Customer Content; SWIFT’s licensed and authorized use of Customer Content. Between Customer and SWIFT, Customer owns the Customer Content and reserves all rights in the Customer Content not expressly granted to SWIFT in this Agreement. Customer grants SWIFT (a) a non-exclusive, royalty-free, and transferable worldwide right and license to access, store, process, use, copy, record, modify, disclose, transfer, and remove Customer Content for the purposes of (i) providing the Services, improving and enhancing the Services, or as otherwise permitted by these SWIFT Customer Terms; (ii) in accordance with, or as required by, Applicable Law, legal process or governmental request; (iii) to enforce or defend SWIFT’s rights or carry out SWIFT’s obligations; or (iv) as permitted in writing by Customer; and (b) a non-exclusive, royalty-free, perpetual, irrevocable, and transferable worldwide right and license to access, store, process, use, copy, record, modify, disclose, transfer, and make derivative works from Customer Content for the purposes of aggregating, collecting, compiling, or creating the Aggregated Data (collectively, the “Authorized Uses of Customer Content”). SWIFT owns all Aggregated Data. To the extent that SWIFT requires further rights, Customer assigns SWIFT all right, title, and interest to the Aggregated Data.
3.3 SWIFT’s rights to Feedback; limits on Customer’s use of Feedback. SWIFT encourages Customer to submit Feedback to SWIFT. If Customer or Users provide SWIFT with Feedback via the Services or any other method, Customer grants SWIFT an exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide right and license to access, store, process, use, copy, record, modify, make derivative works from, translate, display, publicly perform, broadcast, transmit, publish, distribute, disclose, transfer, remove, sublicense, sell, and export Feedback provided by Customer and Users, in any form or medium, without restriction. Customer and Users are prohibited from reposting, republishing, or redistributing Feedback. SWIFT has the right, but does not assume any responsibility to review, screen, or approve Feedback. SWIFT has no obligation to keep Feedback confidential, to pay any compensation for Feedback or to respond to any Feedback. Customer is solely responsible for the accuracy and legality of any Feedback Customer and Users make. SWIFT takes no responsibility and assumes no liability for any Feedback posted or transmitted by Customer, Users, or a third party.
3.4 Marks and Publicity. Each party retains the exclusive ownership right to any distinctive trade names, logos, trademarks, service marks, product identifications, artwork, and other symbols and devices associated with such party or its products or services (“Marks”).
4. Customer’s Use of the Services
4.1 Customer’s permitted access and use. Subject to the terms of this Agreement, SWIFT grants to Customer a non-exclusive, non-transferable, and non-sublicensable right to access, provision to Customer’s Salesforce instance, and use the Services described in any Order Form up to the Service Limits for the Term for Customer’s internal business purposes. Customer may allow Users to access and use the Services subject to any Service Limits. Users must be Customer’s employees or contractors working on Customer’s behalf who are subject to confidentiality obligations at least as restrictive as the confidentiality obligations in this Agreement.
4.2 Customer’s responsibilities.
a. Users. Customer is solely responsible and liable for each User’s access to and use of the Services and for any breach of this Agreement by a User.
b. Testing, installing, and updates. Customer is solely responsible and liable for (i) testing the Services (including in sandbox and preproduction organizations), (ii) installing the Services onto Customer’s production organizations (for example, the Customer’s Salesforce instance), (iii) configuring the Services as recommended by SWIFT, including permission sets, user hierarchy, and other settings, (iv) managing the Customer’s production organizations, and (v) updating the Services based on the updates provided by SWIFT.
c. Applicable Law. Customer is solely responsible and liable for Customer’s compliance with Applicable Law in connection with its use of the Services. Customer acknowledges and agrees that SWIFT does not provide legal or financial advice.
d. Customer Content. Customer is solely responsible and liable for the development, content, use, and maintenance of Customer Content and for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Customer must ensure that Customer Content and Customer’s and each User’s use of Customer Content must not violate Applicable Law or the rights of other Users or third parties.
e. Backups. Customer is solely responsible and liable for backing up Customer Content on a regular basis and taking appropriate steps to safeguard and ensure the integrity of Customer Content. SWIFT is not responsible for any backup, recovery, or other steps to ensure Customer Content is recoverable in the event of a data loss. SWIFT expressly disclaims any obligations with respect to storage of Customer Content.
f. Customer’s communications with Users and third parties. Customer is solely responsible and liable for all communications with Users and third parties through or in connection the Services, including chat, comment, text, email, video communication or any other form of communication.
4.3 Restrictions on Customer’s use of the Services.
a. Minimum age. Customer (if an individual) and each User must be 18 years of age or older to use the Services.
b. Prohibited Uses of the SWIFT Property (which includes the Services). Customer and each User must not do, or attempt to do, any of the following: (a) decompile, disassemble, decrypt, or reverse engineer the SWIFT Property, or attempt to obtain or perceive the source code from which any component of the SWIFT Property is compiled or interpreted; (b) duplicate or make any modification, adaptation, improvement, enhancement, translation, or derivative work or product from the SWIFT Property or any component of the SWIFT Property; (c) license, sublicense, lease, resell, or transfer any of the SWIFT Property to a third party or allow any third party (other than Users as permitted herein) to gain access to the SWIFT Property; (d) access the SWIFT Property if Customer is, or acting on behalf of, a competitor of SWIFT or for a competitive purpose, or provide any SWIFT Property to any competitor of SWIFT; (e) remove or alter any copyright, trademark, or other proprietary notices on the SWIFT Property; (f) transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs through the SWIFT Property; (g) interfere with or disrupt the integrity or performance of the SWIFT Property; (h) attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the SWIFT Property, including Service Limits; (i) conduct any denial of service (DoS) attack on the SWIFT Property or otherwise attempt to disrupt, disable, or overload the SWIFT Property; (j) attempt to gain access to the SWIFT Property by automated means, such as bots (other than as specifically permitted under this Agreement, such as if Customer’s Order Form permits API access); (k) attempt to gain unauthorized access to the SWIFT Property or the computer systems or networks related to the SWIFT Property; (l) create a false identity or attempt to mislead others as to Customer’s or a User’s identity or the identity of the sender or the origin of any data or communications; (m) use the SWIFT Property to violate any Applicable Law or rights of others; or (n) interfere with another person’s use and enjoyment of the SWIFT Property.
c. Export restrictions. This Agreement is expressly made subject to any Applicable Law regarding import, re-import, sanctions, anti-boycott, export, and re-export control, such as the US Export Administration Regulations, the US International Traffic in Arms Regulations, and economic sanctions programs implemented by the US Office of Foreign Assets Control (“Trade Restrictions”). Customer agrees that Customer is solely responsible and liable for compliance with Trade Restrictions related to the manner in which Customer uses the Services, including Customer’s transfer and processing of Customer Content, the provision of Customer Content to Users and third parties, and the location in which any of the foregoing occur. This obligation survives the termination or expiration of this Agreement.
d. Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift, or thing of value from any SWIFT, or any of SWIFT’s employees, agents, or representatives in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify SWIFT if it offers or receives any such improper payment or transfer in connection with this Agreement.
4.4 Suspension of Customer’s access to Services. SWIFT may suspend Customer or any User’s access to the Services, immediately if SWIFT, in good faith, believes: (a) that Customer or any User has materially breached any provision of this Agreement; (b) that Customer or any User is using the Services in a manner that threatens the security, integrity, or reliability of the Services; (c) that there has been unauthorized access or fraud related to Customer’s use of the Services; or (d) that the provision of the Services (or a portion thereof) will expose either party to legal, regulatory, or compliance risk.
4.5 Changes to the Services. Customer acknowledges that the features and functions of the Services may be updated or otherwise be subject to change. Any reference to “Services” in this Agreement includes the Services as they are updated or changed from time to time. SWIFT will not materially decrease the overall functionality of the specific Services ordered by Customer, except as otherwise permitted by this Agreement.
4.6 SWIFT’s audit rights. SWIFT may audit Customer’s records to verify Customer’s compliance with any of the terms of this Agreement, including the Service Limits. SWIFT will conduct such audit upon at least 7 day’s written notice, during reasonable business hours, and no more than once per calendar quarter (unless SWIFT finds evidence of noncompliance in any prior audit, then SWIFT may conduct audits more frequently, in SWIFT’s sole discretion). SWIFT may engage a third-party auditor to conduct an audit under this subsection, provided that such third-party auditor is subject to confidentiality obligations at least as restrictive as the confidentiality obligations in this Agreement. Customer must reasonably cooperate with SWIFT’s request for an audit pursuant to this subsection, including providing SWIFT with access to all records reasonably requested by SWIFT.
5. Fees, Payment, and Subscription Terms
5.1 Customer agrees to pay the fees for the Services stated in the applicable Order Form and all additional fees and charges incurred during Customer’s use of the Services, such as professional services fees. Fees, taxes, and other charges will be invoiced and are payable in US dollars.
5.2 The fees stated in an Order Form are exclusive of taxes. Customer agrees to pay all sales, use, and other taxes, fees, and other charges imposed by governmental authorities on SWIFT’s provision of the Services to Customer (other than taxes based on SWIFT’s net income).
5.3 Payments are due in advance on the date, or recurring interval dates stated in an Order Form. Late payments must bear interest at the lesser of (i) 1.5% per month calculated and compounded monthly or (ii) the highest rate permissible under Applicable Law, except for payments that are properly disputed.
6. Confidential Information
6.1 Confidential Information definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Confidential Information of each party includes business processes, business and marketing plans, technology and technical information, product plans and designs, and accounting information disclosed by such party. SWIFT Confidential Information includes: (i) the terms and conditions of any Order Form (including pricing) but not the existence of an Order Form; and (ii) any nonpublic feature or function of the SWIFT Property. However, Confidential Information does 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) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
6.2 Confidential Information obligations. The Receiving Party must not (a) use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) must not disclose Confidential Information of the Disclosing Party any person, other than to those of the Receiving Party’s employees, officers, directors, affiliates, agents, contractors, and third parties who need access for purposes consistent with this Agreement or in connection with a merger, acquisition, equity or debt financing, bankruptcy or other transaction in which a third party invests in or acquires control of the Receiving Party’s business or assets (in whole or in part) (“Representatives”); provided that the Receiving Party’s Representatives are subject to confidentiality obligations at least as restrictive as the confidentiality obligations in this Agreement. On the expiration or termination of the Agreement, at the request and option of the Disclosing Party, the Receiving Party must promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding the preceding sentence, the Receiving Party may retain a copy of such Confidential Information as it deems reasonably necessary or appropriate for record retention, as required by Applicable Law, legal process, or governmental request, or to enforce or defend the Receiving Party’s rights or carry out the Receiving Party’s obligations, provided that the Receiving Party continues to treat the Confidential Information as Confidential Information under this Section 6 for as long as it retains it.
6.3 Confidential Information use exceptions. The Receiving Party may disclose Confidential Information as authorized by the Disclosing Party. The Receiving Party may disclose Confidential Information to the limited extent required by Applicable Law, legal process, or governmental request; provided that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. To the extent that Confidential Information includes Personal Information, the provisions of Section 7 on Personal Information must control in the event of a conflict with this Section 6.
7. Personal Information Security and Privacy
7.1 Personal Information in Salesforce. The Services operate within Customer’s Salesforce instance and are hosted by Salesforce, not SWIFT. Unless specifically provided or made available to SWIFT by Customer, SWIFT does not access, store, use, disclose, or transfer Customer Content (including Personal Information therein) contained in Customer’s Salesforce instance. Customer is solely responsible and liable for the security of its Salesforce instance, including the access to and use of its Salesforce instance by each User.
7.2 Security and processing of Personal Information. Each party must maintain reasonable and appropriate technical and organizational safeguards for the protection of the security and confidentiality of Personal Information controlled or processed by such party. As between the parties, Customer owns and controls all Personal Information contained in Customer Content and SWIFT processes such Personal Information in accordance with the terms of this Agreement (including the Authorized Uses of Customer Content in Section 3.2). If required by Applicable Law, SWIFT and Customer agree to negotiate a data processing addendum to this Agreement in good faith.
7.3 Customer’s responsibilities for Personal Information in Customer Content. Customer is responsible for all compliance with Applicable Law relating to Personal Information contained in Customer Content, including providing the required notices or receiving the proper authority or consent to allow SWIFT to collect and process Personal Information from Customer and Users for the Authorized Uses of Customer Content (defined in Section 3.2). Customer is responsible for responding to any request from an individual to exercise any of its Personal Information rights under Applicable Law (including the rights to know, access, data portability, delete, correct, limit, or opt-out as applicable) with respect to Personal Information contained in Customer Content (each, a “Data Subject Request”). If SWIFT receives a Data Subject Request, SWIFT will inform Customer of the Data Subject Request and inform the requestor to make the Data Subject Request directly to Customer. To the extent SWIFT assists Customer with Customer’s compliance obligations under Applicable Law relating to Personal Information, Customer must pay or reimburse SWIFT for any time spent by SWIFT for such assistance at SWIFT’s then-standard or other reasonable professional services rate and any out-of-pocket costs reasonably incurred.
7.4 Security Incident definition. “Security Incident” means any suspected or actual unauthorized access, acquisition, disclosure, use, theft, loss, destruction, alteration, or other compromise of Personal Information in Customer Content while in SWIFT’s possession or control.
7.5 Security Incident obligations. The party discovering any Security Incident shall give the other party notice of the Security Incident as soon as practical, and no more than 7 business days after discovering the Security Incident. To the extent that Applicable Law requires a notification of the Security Incident to be provided to the subjects of the Personal Information, governmental authorities, or other third parties, Customer is responsible for such notification, but Customer must obtain SWIFT’s written consent to name or otherwise identify SWIFT in any such notification. SWIFT is also permitted (but not required) to send any notification of the Security Incident required by Applicable Law.
8. Representations, Warranties, and Disclaimer
8.1 Customer’s representations and warranties. By entering into this Agreement, Customer makes representations and warranties to SWIFT.
a. Valid agreement. Customer represents and warrants that Customer has validly accepted or entered into this Agreement and that Customer and the individual accepting or entering into this Agreement on Customer’s behalf has all necessary legal power and authority to do so.
b. Customer Content. Customer represents and warrants that, at all times: (i) Customer has all rights necessary to grant all rights and licenses to the Customer Content granted to SWIFT in this Agreement; (ii) Customer has obtained the Customer Content lawfully and the Customer Content does not and will not violate any Applicable Law or any third party’s rights; (iii) Customer has complied with all Applicable Law, provided all required notices, and received the required authority or consent to allow SWIFT to collect, process, and use Customer Content (including Personal Information) as provided in this Agreement; (iv) SWIFT may exercise SWIFT’s rights in Customer Content granted in this Agreement without liability or cost to any third party; and (v) the Customer Content complies with the terms of this Agreement.
c. Customer communications. Customer represents and warrants that all of Customer’s communications with Users and third parties through the Services are in compliance with Applicable Law and Customer has provided any required disclosures and obtained any required agreements, authorizations, consents, and opt-ins for communications with Users and third parties.
d. No Sanctions Lists. Customer represents and warrants that Customer and Users are not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). If Customer or any User becomes placed on any Sanctions List, Customer must notify SWIFT immediately and discontinue the use of the Services by Customer or User as applicable.
8.2 SWIFT’s representations and warranties.
a. Valid agreement. SWIFT represents and warrants that SWIFT has validly accepted or entered into this Agreement and that SWIFT and the individual accepting or entering into this Agreement on SWIFT’s behalf has all necessary legal power and authority to do so.
b. Intellectual property warranty. SWIFT represents and warrants that SWIFT has full and sufficient rights to grant the rights and licenses granted to Customer in the Agreement and Customer’s use of and access to the SWIFT Property does not and will not infringe any US copyright, trademark, or other intellectual property rights (“IP Warranty”). Customer’s sole and exclusive remedies for breach of this IP Warranty are SWIFT’s indemnification obligations in Section 9.
8.3 DISCLAIMER OF WARRANTIES. CUSTOMER IS SOLELY RESPONSIBLE FOR AND ASSUMES ALL RISKS RELATED TO CUSTOMER’S USE OF THE SERVICES. THE SERVICES, THE SWIFT CONTENT, AND ANY OTHER CONTENT, DATA, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” AND, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWIFT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY. SWIFT expressly disclaims any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. SWIFT expressly disclaims any warranties of system integration, non-interference, absence of any defects (whether latent or patent), and security of data. SWIFT does not warrant or make any representations concerning the accuracy, completeness, quality, usability, or reliability of the Services or any content found on or linked to the Services. SWIFT expressly disclaims any warranty related to third-party websites or other third-party content that may be accessed through the Services. SWIFT makes no warranty or representation on the basis of trade usage, course of dealing, or course of performance. SWIFT does not warrant or represent that the Services, the SWIFT Content, or any other content, data, software, products, or services provided in connection with the Services will meet Customer’s requirements, comply with Applicable Law, generate enforceable obligations, be uninterrupted, error-free, or free of bugs, viruses, or malware. SWIFT does not represent or warrant that any errors or defects will be corrected. Customer acknowledges that SWIFT’s obligations under this Agreement is for the benefit of Customer only. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. SWIFT is not responsible for any delays, delivery failures, or other damages resulting from such problems.
9. Indemnification
9.1 Mutual indemnification.
a. Customer agrees to defend, indemnify, and hold SWIFT and the SWIFT Indemnitees harmless from any third-party claims and related damages, losses, or costs (including reasonable attorneys’ fees and expenses) arising out of : (i) the gross negligence, willful misconduct, or violation of any Applicable Law by Customer, any User, or any person to whom Customer provides access to the Services; or (ii) a breach of Section 6 (Confidential Information) or Section 7 (Personal Information Security and Privacy) by Customer, any User, or any person to whom Customer provides access to the Services.
b. SWIFT agrees to defend, indemnify, and hold Customer and Customer’s affiliates, along with Customer’s and Customer’s affiliates’ respective directors, officers, employees, and agents, harmless from any third-party claims and related damages, losses, or costs (including reasonable attorneys’ fees and expenses) arising out of: (i) the gross negligence, willful misconduct, or violation of any Applicable Law by SWIFT; or (ii) a breach of Section 6 (Confidential Information) or Section 7 (Personal Information Security and Privacy) by SWIFT.
9.2 SWIFT’s intellectual property indemnification of Customer. If a claim is made or an action brought by a third party relating to or arising from a breach of the IP Warranty, SWIFT will defend Customer against such claim and will pay resulting costs and damages finally awarded or agreed to in settlement (with SWIFT’s consent), provided that Customer provides SWIFT with prompt notice of such claim and subject to the terms of this subsection 9.2 and subsection 9.3. SWIFT’s obligations under this subsection are conditioned on Customer’s agreement that if any of the SWIFT Property, or the use or operation thereof, becomes, or in SWIFT’s opinion is likely to become, the subject of such a claim, SWIFT may at its expense and option, either (a) procure the right for Customer to continue using the Services; or, (b) replace or modify the Services or other SWIFT Property so that it becomes non-infringing (provided such replacement or modification does not materially adversely affect Customer’s intended use of the Services as contemplated hereunder). If neither of the foregoing alternatives is available to SWIFT on commercially reasonable terms, SWIFT may terminate Customer’s access to the Services and SWIFT will refund any pre-paid fees pro-rata for the remainder of the Term after Customer’s access is terminated. Notwithstanding the foregoing, SWIFT will have no obligation or liability to the extent that a claim arises from (i) the combination, operation, or use of the SWIFT Property with products, services, information, materials, technologies, methods or processes not furnished by or reasonably contemplated by SWIFT ; (ii) modifications to the SWIFT Property, which modifications are not made by SWIFT ; (iii) failure to use updates to the SWIFT Property provided by SWIFT; or (iv) use of the SWIFT Property in breach of the Agreement. This indemnification provision sets forth Customer’s sole and exclusive remedies, and SWIFT’s sole and exclusive liabilities, for any claims relating to or arising from a breach of SWIFT’s IP Warranty.
9.3 Indemnification Procedures. The party required to provide indemnification (the “Indemnitor”) and the party requesting indemnification (the “Indemnitee”) pursuant to subsection 9.1 or 9.2 above, must follow the following indemnification procedures: (a) Indemnitee agrees to give Indemnitor prompt notice of any written threat, warning, or notice of any claim for which Indemnitee intends to seek indemnification and copies of all papers served upon or received by it relating to the same, however, no delay on the part of Indemnitee in notifying Indemnitor will relieve Indemnitor from any obligations hereunder unless, and then solely to the extent that, Indemnitor is materially prejudiced thereby in the defense of settlement of the claim; (b) Indemnitee agrees to provide reasonable assistance and information to Indemnitor (at Indemnitor’s expense) regarding the defense of any claim; (c) Indemnitee will have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense; and (d) Indemnitor will assume and have the right to conduct the defense of any claim and all negotiations for settlement or compromise, provided that Indemnitor will not have the right to, without Indemnitee’s prior written consent: (i) execute any agreement, document, or pleading that names an Indemnitee as a party; (ii) make any admissions, concessions, or statements of wrongdoing regarding Indemnitee; (iii) settle any claim in any way that assesses blame against Indemnitee or that provides a remedy other than the payment of money; or (iv) settle any claim unless such settlement completely and forever releases Indemnitee with respect thereto.
10. Limitations of Liability
10.1 APPLICABILITY OF LIMITS ON LIABILITY. ALL OF THE LIMITATIONS ON LIABILITY IN THIS SECTION 10, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, APPLY (A) REGARDLESS OF THE THEORY OF LIABILITY OR FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (B) REGARDLESS OF THE CAUSE OF THE DAMAGES, INCLUDING NEGLIGENCE; (C) EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (D) WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR ANY REMEDIES HAVE FAILED THEIR ESSENTIAL PURPOSE; AND (E) TO ANY CLAIMS CUSTOMER MAY BRING AGAINST ANY THIRD PARTY TO THE EXTENT THAT SWIFT WOULD BE REQUIRED TO INDEMNIFY THAT THIRD PARTY FOR SUCH CLAIM.
10.2 LIMITS ON LIABILITY FOR CERTAIN TYPES OF DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES TO LIMIT CLAIMS FOR DAMAGES (OR OTHER MONETARY RELIEF) AGAINST THE OTHER PARTY TO DIRECT AND ACTUAL DAMAGES. THIS MEANS THAT NEITHER PARTY WILL SEEK ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. The limitations on liability in this Section 10.2 do not apply with respect to a third-party claim as to which a party is entitled to be indemnified hereunder to the extent that such third-party claim arises from: (i) the Indemnitor’s breach of Section 6 (Confidential Information) or Section 7 (Personal Information Security and Privacy); or (ii) the Indemnitor’s gross negligence or willful misconduct.
10.3 THE PARTIES AGREE TO LIMIT THE AMOUNT OF DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, AND EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS FOR THE SERVICES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OR RELATING TO THIS AGREEMENT IS LIMITED TO THE FEES THAT CUSTOMER PAID TO USE THE RELEVANT SERVICES IN THE 12 MONTHS BEFORE THE DATE OF THE BREACH; OR, IN THE EVENT THIS AGREEMENT HAS NOT BEEN IN EFFECT FOR ONE YEAR AT THE TIME OF THE BREACH, THEN THE AGGREGATE FEES PROJECTED TO BE PAID OR ACCRUED UNDER THIS AGREEMENT IN THE FIRST 12 MONTHS OF THIS AGREEMENT (THE “LIABILITY CAP”). Except that a party’s liability arising from any of the following is instead limited to three times the Liability Cap: (i) such party’s breach of Section 6 (Confidential Information) or Section 7 (Personal Information Security and Privacy); or (ii) such party’s gross negligence or willful misconduct.
10.4 NEITHER PARTY IS LIABLE FOR DAMAGES OUT OF SUCH PARTY’S CONTROL. Neither party is liable for any delays, problems, or damages caused by any act of nature or by any act beyond such party’s reasonable control (for example, war, terrorist acts, labor disputes, government actions or pandemics). Additionally, the parties agree that SWIFT has no control over the conduct of, or any information provided by, Customer or Users, including Customer Content. Customer agrees that SWIFT is not liable for delays, problems or damages caused by Customer, Users, or a third party or by criminal activity by someone unrelated to SWIFT.
10.5 THE PARTIES AGREE TO LIMIT THE DEADLINE TO BRING CLAIMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH AGREE THAT ALL CLAIMS RELATED TO THIS AGREEMENT OR THE SERVICES MUST BE BROUGHT WITHIN 2 YEARS OF THE DATE THE CLAIM ARISES (EVEN IF APPLICABLE LAW PROVIDES FOR A LONGER STATUTE OF LIMITATIONS).
10.6 THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. The limitations of liability in this Section 10 constitute an important part of this Agreement and are among the reasons the parties are willing to enter into this Agreement. Without these limitations of liability, the provisions of this Agreement, including but not limited to any economic terms, would be substantially different.
11. Term, Termination, and Survival
11.1 Term. This Agreement commences on the date Customer enters into an Order Form and continues until terminated in accordance with Section 11.2 (“Term”).
11.2 Termination
a. Termination at end of Order Form. This Agreement terminates upon the expiration, cancellation, or termination of all outstanding Order Forms. Expiration or termination of one Order Form does not affect any other Order Form.
b. Termination for material breach. Customer or SWIFT may terminate this Agreement (including all Order Forms that are in effect) in the event the other party commits any material breach (including non-payment) of this Agreement and fails to remedy such breach within 30 days after receiving written notice of such breach.
c. Termination for insolvency. Subject to Applicable Law, Customer or SWIFT may terminate this Agreement immediately by providing written notice to the other party in the event of the other party’s insolvency, dissolution, liquidation, assignment for the benefit of creditors, or commencement of proceedings (voluntary or involuntary) for receivership or bankruptcy.
d. Suspension of access. SWIFT may suspend Customer’s access or a User’s access to the Services if permitted by another provision of this Agreement. SWIFT may not be required to give any notice to Customer to suspend access under such other provisions.
11.3 Effect of Termination. Upon termination of this Agreement, Customer and each User must immediately discontinue access to and use of the Services, delete or otherwise remove all SWIFT Property from all of Customer’s hardware, networks, systems, and applications (including its Salesforce instance), and Customer must promptly pay all outstanding amounts due. Upon termination, SWIFT has no obligation to maintain or provide access to any Customer Content and SWIFT has the right to delete all information and data related to Customer, including the Customer Content, immediately upon termination and will incur no liability for such deletion. Additionally, Customer may request that SWIFT delete all Customer Content upon the termination of this Agreement and certify in writing that such Customer Content has been deleted. If Customer requests a copy of Customer Content in SWIFT’s possession or control, SWIFT may honor or refuse Customer’s request in SWIFT’s sole discretion and may charge a fee to provide Customer with a copy of Customer Content. Notwithstanding anything herein to the contrary, SWIFT may retain a copy of the Customer Content and the other information and data related to Customer’s use of the Services, as SWIFT deems reasonably necessary or appropriate for SWIFT’s record retention, as required by Applicable Law, legal process, or governmental request, or to enforce or defend SWIFT’s rights or carry out SWIFT’s obligations, subject to any restrictions on use of such Customer Content in this Agreement.
11.4 Survival. All provisions of this Agreement that are intended to survive or that must survive in order to give effect to its meaning (including, but not limited to, the provisions of Sections 3, 4.3, 6, 7, 8, 9, 10, 11, and 12) must survive the termination or expiration of this Agreement.
12. General
12.1 Choice of law and jurisdiction. This Agreement is governed by the laws of the state of New York, without regard to any conflicts of laws rules. Court proceedings must be brought in state or federal court in New York County, New York (except orders and judgments from such courts may be enforced in any jurisdiction). Each party consents to and waives all defenses of lack of personal jurisdiction or inconvenient forum to any court proceeding brought in New York County, New York consistent with the terms of this Agreement.
12.2 Disputes; JURY TRIAL WAIVER. For any and all disputes or claims Customer has, Customer must first give SWIFT an opportunity to resolve Customer’s claim by sending a written description of Customer’s claim to the email or postal address in the Notice Section 12.4 below. Customer and SWIFT each agree to negotiate Customer’s claim in good faith. Customer agrees that Customer may not commence any court proceeding unless Customer and SWIFT are unable to resolve the claim within 60 days after SWIFT receives Customer’s claim description and Customer has made a good faith effort to resolve Customer’s claim directly with SWIFT during that time. If a dispute is brought before a court and SWIFT is the prevailing party on a claim, Customer must pay SWIFT’s reasonable attorneys’ fees and costs incurred with respect to such claim. If Customer fails to pay any fees or other charges under this Agreement when due, Customer must pay SWIFT’s reasonable attorney’s fees and costs incurred in collection from Customer. CUSTOMER AND SWIFT EACH WAIVE ANY RIGHT TO A JURY TRIAL.
12.3 Injunctive relief. Customer and SWIFT acknowledge and agree that a breach by either party of its confidentiality or Personal Information responsibilities or obligations under Section 6 or 7, or a breach by Customer of Customer’s responsibilities or obligations under Section 4, could cause the other party irreparable harm for which monetary damages would not be an adequate remedy. Customer and SWIFT agree that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. These remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
12.4 Notices. Customer may deliver notices to SWIFT by email to [email protected]. If Customer is commencing a legal proceeding against SWIFT, Customer must send notice of the legal proceeding to SWIFT’s registered agent at SWIFT SALES APPLICATIONS INC. c/o The Corporation Trust Company, Corporation Trust Center 1209 Orange St, Wilmington, DE 19801. SWIFT may deliver notices to Customer via email, mail, or electronic means using the contact information on Customer’s Order Form or in Customer’s account or by posting the notice in the Services. Electronic notices are considered delivered when sent or posted. Postal notices are considered delivered 3 days after mailing. Notices delivered by a nationally recognized courier (for example, UPS and FedEx) are considered delivered when received.
12.5 E-Communications Consent. SWIFT may need to provide Customer with certain communications, notices, agreements or disclosures (“Communications”) in writing regarding the Services. Customer agrees and consents to receive Communications electronically from or on behalf of SWIFT rather than in paper form, and to the use of electronic signatures in SWIFT’s relationship with Customer (collectively, “E-Communications Consent”). Customer also acknowledges and agrees that Customer has the ability to receive and sign Communications electronically. Customer should maintain copies of electronic Communications from SWIFT by printing a paper copy or saving an electronic copy. Customer may withdraw Customer’s consent to receive Communications electronically at any time by sending SWIFT notice at the email address in the Notice Section 12.4 above. If Customer choose to withdraw Customer’s consent, SWIFT may terminate Customer’s access to the Services.
12.6 Third-Party connections. The Services may include integrations, links, or connections to third-party websites, applications, or services (including those of Salesforce). This inclusion does not imply review or endorsement by SWIFT; Customer proceeds at Customer’s own risk to a third-party website, application, or service. SWIFT does not warrant, and is not responsible for, the services, products, statements, or claims made by or about a third party, or the actions or omissions of any third party. Customer must review and comply with any third-party terms of service or other provisions.
12.7 Third-Party beneficiaries. There are no third-party beneficiaries to this Agreement. All rights and benefits of this Agreement from SWIFT are intended solely for Customer as the original purchaser of the Services.
12.8 Independent Contractors. Customer and SWIFT agree that the relationship arising from the Services and this Agreement does not constitute or create any joint venture, partnership, employment relationship, or franchise between the parties. Customer and SWIFT are acting as independent contractors in making and forming this Agreement.
12.9 No Exclusivity. The parties acknowledge that this Agreement is non-exclusive, and that subject to the terms and conditions of this Agreement, either party is free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.
12.10 Assignment. The parties are prohibited from assigning this Agreement to a third party without the prior written consent of the other party to this Agreement except as provided in this subsection. Either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent, in connection with a merger, acquisition, corporate reorganization, or sale of substantially of all the assigning party’s assets or to an affiliate of such party. SWIFT may sub-contract the performance of any part of the Services to any third party provided that SWIFT will remain liable for the acts and omissions of its subcontractor. Any permitted assignment does not relieve the assigning party of its obligations under this Agreement unless agreed in writing by the other party. Subject to the foregoing restrictions on assignment, this Agreement binds and inures to the benefit of Customer’s and SWIFT’s respective successors and permitted assigns.
12.11 Amendment. Neither party may amend any Order Form except in a writing signed by both parties. SWIFT has the sole discretion to amend these SWIFT Customer Terms. If this occurs, SWIFT will provide Customer with notice via any means SWIFT considers reasonable, including, without limitation, email or posting in the Services. After SWIFT provides notice, Customer’s continued use of the Services constitutes Customer’s acceptance of the changes and the Agreement as amended.
12.12 Waiver; cumulative remedies. Neither party may waive any provision of this Agreement except in a writing signed by both parties. Either party’s failure to insist on or enforce strict performance of any provision of this Agreement or any of its rights is not a waiver of any provision or 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.
12.13 Severability. If any part of this Agreement is held invalid or unenforceable, that part may be severed from the Agreement to the minimum extent necessary to cure such invalidity or unenforceability. The remainder of the Agreement must remain valid and enforceable.
12.14 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior oral and written, and all contemporaneous oral, agreements and understandings between the parties with respect to such subject matter. The parties acknowledge there are no contemporaneous written agreements or understandings not set forth herein.