Thank you for choosing software from SwiftServe Limited. This End User License Agreement (the “Agreement”) is a legally binding license agreement between you “Customer” and SwiftServe Limited, a United Kingdom corporation with offices at St. John’s Innovation Centre, Cowley Road, Cambridge CB4 0WS United Kingdom, Company registration number: 7902631(“SwiftServe”) that describes your rights to use software provided by SwiftServe, including software and technical support and maintenance for that software.
BY SELECTING “I AGREE” DURING SIGN-UP, INSTALLATION OF THE SOFTWARE, OR BY DOWNLOADING, INSTALLING, COPYING, OR USING SOFTWARE PROVIDED BY SWIFTSERVE, OR BY OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS EULA, YOU ACKNOWLEDGE AND AGREE: (1) THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) THAT YOU AGREE TO BE BOUND BY EACH AND EVERY TERM OF THIS EULA; AND (3) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THAT YOU HAVE THE POWER AND AUTHORITY TO DO SO AND TO BIND SUCH COMPANY. IF YOU DO NOT AGREE TO EACH AND EVERY TERM AND CONDITION OF THIS EULA, YOU MAY NOT USE ANY SOFTWARE PROVIDED BY SWIFTSERVE. If you do not agree with each and every of the terms and conditions of this EULA, do not click “I ACCEPT” or otherwise take any action that signifies your agreement to this EULA and return the software to SwiftServe immediately.
In exchange for the mutual covenants, terms and conditions contained herein, SwiftServe and Customer hereby agree as follows:
- Grant of Limited License and Support and Maintenance
1.1 Scope. This Agreement applies to SwiftServe software: SwiftCache Lite(“Software”) licensed by Customer from SwiftServe or its authorised distributor/reseller and Support and Maintenance as defined below. Professional service offerings are governed by other agreements.
1.2 License Grant. Subject to all the terms of this Agreement and payment of all related fees with respect to the Software, SwiftServe grants Customer a, non-sublicensable, non-exclusive, object code license to: (i) use the Software and for any quantity(s) specified as stated in Customer’s purchase order and only in accordance with SwiftServe’s applicable user documentation.
Please note that SwiftCache Lite is currently unavailable for Iran, North Korea & Syria countries.
SwiftServe reserves the rights to turn off the service remotely without any advance notice for Iran, North Korea & Syria and no refunds, partial or others will be given.
1.3 License Restrictions. Customer shall not (and will not allow any third party to) (i) disassemble, reverse engineer, decompile or attempt to discover any source code or internal structure or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions) or any part thereof, (ii) modify, adapt, create derivative works based upon, or translate the Software or any part thereof, (iii) transfer, provide, rent, lease, lend, resell for profit, distribute or use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party, or (iv) except as expressly provided for in this Agreement, copy, install or use the Software on any of its computer systems, servers, or networks. All the limitations and restrictions on Software in this Agreement also apply to documentation. Customer will maintain the copyright notice and any other notices that appear on the Software and on any copies and any media. All rights not expressly granted herein are reserved by SwiftServe or its suppliers.
1.4 Limitations. Customer acknowledge that SwiftServe may include certain features in the Software which may prevent its usage which is inconsistent with the grants and restrictions in Section 1.2 and 1.3, and which may prepare and send usage reports to SwiftServe via the Internet. Customer shall take no action to cause, nor through any inaction cause, such usage features not to function as designed, nor prevent such reports from being timely and accurately prepared or delivered.
2.1 Support. A paid use license to Software entitles Customer to Product Updates and web or e-mail based technical support from SwiftServe (“Support and Maintenance”) for the time period that SwiftServe states to provides Customer with the Software(“Support Term”). Customer has the option to purchase in advance 24 by 7 Support and Maintenance from SwiftServe or its authorised reseller.
2.2 Defined Support Terms. “Minor Updates” are subsequent versions of the Software that contain bug fixes or minor enhancements and are typically designated by a change in the version number to the right of the decimal point. “Major Updates” are subsequent versions of the Software typically designated by a change in the version number to the left of the decimal point that contain new features or functionality which SwiftServe elects to make available to Customer at no additional charge during Customer’s Support Term. Minor and Major Updates are collectively referred to as “Product Updates”. Upon installation, Product Updates become “Software” for the purposes of this Agreement. SwiftServe is only obligated to provide technical support for Major Updates of the Software for twelve months after the release of another subsequent Major Update.
2.3 Support Restrictions. SwiftServe reserves the right to offer modified versions of its Software, including subsequent versions that contain new features or functionality, as new products or services for additional consideration. SwiftServe reserves the right to change the terms and conditions, including fees from time to time.
- Limited Warranty
3 Limited Warranty. SwiftServe warrants that: for thirty (30) days from the date SwiftServe provides the Software to the Customer, the program portion of the Software will substantially conform with the applicable documentation, as updated from time to time, including “ReadMe” files and release notes available online (“Limited Warranty”).
- Customer Remedy
4 Customer Remedy. If the Software does not conform to the Limited Warranty above, SwiftServe’s entire liability and Customer’s sole remedy shall be, at SwiftServe’s option, for SwiftServe to: (i) use commercially reasonable efforts to correct the error in the Software, or (ii) help Customer work around or avoid the Software error; provided that Customer notify SwiftServe of Customer’s claim under the Limited Warranty within the warranty period. THE LIMITED WARRANTY DOES NOT APPLY TO ANY ERROR CAUSED BY ACCIDENT, ABUSE, ALTERATION, MISUSE, MISAPPLICATION OR ANY PROBLEM OR ERROR IN THE OPERATING SYSTEM SOFTWARE WITH WHICH THE SOFTWARE IS DESIGNED TO OPERATE.
- No other Warranties
5 No Other Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTIONS 3 AND 4 and to the extent permitted by applicable law, SWIFTSERVE AND ITS RESELLERS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE AND SUPPORT AND MAINTENANCE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FURTHER, SWIFTSERVE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR SPECIFIC RESULTS OF USE, THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT PATCHES OR WORKAROUNDS WILL BE PROVIDED OR THAT ERRORS WILL BE CORRECTED IN UPDATES. ANY IMPLIED WARRANTIES RELATING TO THE SOFTWARE THAT CANNOT BE EFFECTIVELY DISCLAIMED SHALL BE LIMITED TO THIRTY (30) DAYS FROM THE DATE CUSTOMER ACQUIRES THE SOFTWARE.
- Limitation of Liability
6.1 No Consequential Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SWIFTSERVE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR FOR LOST OR CORRUPTED DATA OR SYSTEM CRASH, LOST PROFITS OR SAVINGS, OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR SUPPORT AND MAINTENANCE THESE LIMITATIONS APPLY EVEN IF SWIFTSERVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY.
6.2 Direct Damage Cap. EXCEPT OF A BREACH OF SECTION 9 OR 1.2,IN NO EVENT WILL THE AGGREGATE LIABILITY OF SWIFTSERVE OR ITS SUPPLIERS FOR ANY CLAIM, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, EXCEED THE LICENSE FEE PAID BY CUSTOMER FOR CUSTOMER’S LICENSE TO THE SOFTWARE DURING THE STATED PERIOD PRIOR TO THE CAUSE OF ACTION. CUSTOMER AGREES TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT CUSTOMER’S AGREEMENT TO THESE LIMITATIONS, THE FEES CHARGED FOR THE LICENSE, SUPPORT AND MAINTENANCE WOULD BE HIGHER. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE SOFTWARE IN HIGH RISK ACTIVITIES IS NOT AUTHORISED. THE PARTIES AGREE THAT THIS SECTION 6 REPRESENTS A REASONABLE ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT SWIFTSERVE’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SWIFTSERVE’S NEGLIGENCE.
7 Termination. This Agreement is effective until terminated. Customer may terminate it at any time by notifying SwiftServe through the user admin portal without any right of refund or set-off. In addition to any other available remedy under applicable law, SwiftServe may terminate this Agreement if Customer commits a material breach of the Agreement or Customer fails to cure any breach within thirty (30) days of receipt of notice from us. Upon such termination, Customer must destroy all copies of the Software. Sections 1.3, 1.4, 5-9, 11, and 12 survive the termination of this Agreement. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
8 Ownership. This License is not a sale and does not convey any rights of ownership in or to the Software. The Software, Support and Maintenance and accompanying documentation are the property of SwiftServe or its licensors, and are protected by copyright, trade secret and U.S. or other patent laws, and international treaty provisions. By accepting this Agreement, Customer acquires the limited rights to the Software, documentation and Services set forth in Section 1.2.
- Confidential Information
9 Confidential Information. During the term of this Agreement or any evaluation period, Customer may be exposed to certain information not generally known to the public that SwiftServe considers and treats as confidential and proprietary (“Confidential Information”), including but not limited to technology, and product plans, and other information held in confidence by SwiftServe that is marked or designated as confidential at the time and information that, due to its character or nature, a reasonable person in a like position and under like circumstances would treat as secret and confidential. During the term of this Agreement and at all times after its termination, Customer agrees (i) to hold the Confidential Information in confidence, (ii) not to disclose Confidential Information to any third parties, except for employees and independent contractors who have a “need to know” and who have signed agreements containing disclosure and use restrictions no less stringent than those in this Section, and (iii) not to use Confidential Information for any purpose except as required to perform under this Agreement.
10 Identification. Customer gives SwiftServe the right to use Customer’s name and logo in client listings. SwiftServe may issue a press release announcing the relationship contemplated by this Agreement, subject to Customer’s approval which shall not be unreasonably withheld or delayed. SwiftServe may use Customer’s name when disclosure is required in connection with SwiftServe’s governmental filings, financial statements and/or prospectuses.
11 Audit. Upon reasonable notice and during regular business hours, SwiftServe shall have the right to audit Customer’s use of the Software or Support and Maintenance. If the audit reveals unlicensed Software, Customer shall pay SwiftServe, within thirty (30) days of notice, 150% of then-current license fees for the unlicensed Software. If the fees payable for unlicensed use exceed five percent (5%) of fees actually paid for the audited time period, Customer must reimburse SwiftServe for the costs and expenses of the audit.
- Additional Provisions
12.1 Assignment and Successors. This Agreement is not transferable or assignable by Customer, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Either party may, with or without the other party’s consent, assign all or part of this Agreement to any affiliate or to any successor-in-interest to all or substantially all of the business or assets of the assigning party pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Any attempted assignment in violation of this Section 12.1 shall be null and void. Subject to the foregoing, this Agreement is binding upon SwiftServe and Customer and our permitted successors and assignees.
12.2 Governing Law. This Agreement shall be governed by and construed under the laws of the United Kingdom. The United Nations Convention on Contracts for the International Sale of Goods and the conflict of laws provisions of Customer’s state or country of residence do not apply to this Agreement under the laws of any country.
12.3 No Waiver. No failure to exercise, nor any delay in exercising, on the part of either party, any right or remedy hereunder shall operate as a waiver thereof.
12.4 Severability. If a court of law finds any provision of this Agreement unenforceable, the parties agree to replace the offending provision with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision and all other terms shall remain in full force and effect.
12.5 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto.
12.6 Entire Agreement. This is the complete and entire statement of the Agreement between the parties and supersedes all prior agreements and other communications between the parties, oral and written, relating to the subject matter of this Agreement.