End User License Agreement

This End User License Agreement and any Schedules incorporated herein (collectively, this “Agreement”) governs the access to, and use of the Products by the End User and is entered into between SwiftConnect Inc., a Delaware corporation, with an address at 24 Camp Avenue, #4890, Stamford, CT 06907 (“SwiftConnect”) and the End User (each a “Party”, and together the “Parties”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ORDERING PRODUCTS FROM RESELLER OR ACCESSING OR USING THE PRODUCTS. BY ORDERING PRODUCTS FROM RESELLER OR OTHERWISE ACCESSING OR USING THE PRODUCTS, END USER AGREES TO BE BOUND BY THIS AGREEMENT. IF END USER DOES NOT WISH TO BE BOUND BY THIS AGREEMENT, THEN END USER SHOULD NOT ORDER PRODUCTS FROM RESELLER OR OTHERWISE ACCESS OR USE THE PRODUCTS.

Capitalized terms used in this Agreement or the Schedules hereto and not otherwise defined have the following meanings:

• “Access Control System” means a system or device designed to control access to a location, operated or otherwise made available by a person or entity other than SwiftConnect. The term “Access Control System” includes Supporting Systems.
• “Access Privilege” means a permission to access one or more specified Restricted Areas.
• “AccessCloud API” has the meaning set out in Section 4 (AccessCloud API) of Appendix 1 to the Schedule for the AccessCloud Platform.
• “AccessCloud Platform” means, collectively, (i) the Portal, (ii) the database and other functionality controlled by SwiftConnect that supports the Portal, (iii) the Platform APIs, (iv) the SwiftConnect Mobile App and SwiftConnect Mobile App’s software development kits (SDKs), (v) the agents for systems integration, and (vi) Updates and Upgrades to the forgoing, together with the other hardware, software, and information technology and communications infrastructure that SwiftConnect uses to provide the Products.
• “Affiliate” means, with respect to a party, a legal entity that is controlled by, controls, or is under common control. The term “control,” and its derivative “controlled,” means ownership or voting rights over at least 50% of the outstanding voting or equity securities of the entity in question or the power to direct or cause the direction of management or policies of such entity, whether through voting securities, by contract or otherwise or with respect to such party’s ownership of fifty percent (50%) common ownership or any equivalent form of interest or control.
• “API” means a software application programming interface between computer systems, software modules, and program libraries (or some combination thereof) that supports requests for applicable services between them. The term “API” includes associated sets of routines, data structures, object classes, and protocols.
• “Credential” means any digital or virtual card, account access device, or physical or digital token that is associated with a user for the purpose of linking the user with Access Privilege and Transactions in an Access Control System.
• “Credentialed User” means an Eligible User who is registered, in the SwiftConnect Platform, with a Credential.
• “Effective Date” is the effective date on the initial Ordering Document.
• “End User” means the legal entity that purchases or otherwise obtains the right to access or use the Products from SwiftConnect, whether directly or through an authorized Reseller of SwiftConnect. The term “End User” includes Eligible Users and Credentialed Users (as context permits).
• “Eligible User” means an individual for whom the End User has requested a Credential or Access Privileges from the AccessCloud Platform.
• “End User Data” means the data and content that the End User, an Eligible User, or a Credentialed User (i) uploads to, or makes available to the SwiftConnect Platform, or (ii) otherwise provides to SwiftConnect. The term “End User Data” includes Onboarding Information, User Management Instructions, and Personal Information of persons including but not limited to Eligible Users and Credentialed Users.
• “End User Internal Systems” means the hardware, software, and telecommunications infrastructure that End User employs to access the Portal.
• “End User-Side Control System” means a Platform-Integrated System (and associated Supporting Systems) included in End User’s subscription under this Agreement, as the term “End User-Side Control System” is further defined in Section 1.2.a) (Specified Platform-Integrated Systems) of the Schedule for the AccessCloud Platform.
• “Implementation Plan” means the implementation plan agreed upon between SwiftConnect, the Reseller and the End User.
• “Implementation Services” means the implementation, development, or configuration services (if any) identified in this Agreement.
• “Intellectual Property Rights” means the rights under patent law, copyright law, trademark law, data and database protection law, trade secret law, and law applicable to confidential information, and any and all similar proprietary rights. “Intellectual Property Rights” means those rights as they exist as of the Effective Date, and all such rights subsequently acquired during the Term.
• “Marks” means trademarks, service marks, trade names, service names, trade dress rights, and other designations of origin, whether registered or unregistered.
• “Mobile Wallet” means the platform on a mobile device that stores the Credentials of a Credentialed User. An example of a Mobile Wallet is an Apple Wallet.
• “Office Building” means the office buildings or spaces within an office building owned or managed by the End User as landlord or leased to the End User as tenant and identified in the Ordering Document.
• “Onboarding Information” means, collectively, (i) the information the End User provides concerning Eligible Users (including, where applicable, Personal Information), its Office Buildings, and its current or proposed systems, including but not limited to Access Control Systems, readers, and Credentials, and (ii) the information an Eligible User individually provides (including, where applicable, Personal Information), all with respect to the credentialing process
• “Ordering Document” means the ordering document under the master agreement between the Reseller and the End User pursuant to which Products are described.
• “Personal Information” means information (i) that relates to an identified or identifiable natural person, (ii) that may be linked or linkable to such natural person or their household; or (iii) that is defined as personal information or personal data (or the equivalent) under applicable law.
• “Platform API” means an API between the AccessCloud Platform and a Platform-Integrated System.
• “Platform-Integrated System” means an Access Control System with which SwiftConnect has integrated the SwiftConnect Platform.
• “Products” means the specific products and services that SwiftConnect makes available to End User pursuant to this Agreement and an Ordering Document.
• “Portal” means the restricted access website that (i) provides End User with access to Transaction Log Reports and other information, and (ii) permits End User to set criteria for Eligible Users, manage Access Privileges, and take other actions with respect to End User-Side Control Systems, all in accordance with the System Documentation.
• “Project Lead” means the individuals from each Party designated as “Project Leads” on the Ordering Document.
• “Reseller” means the entity from which End User purchased access to the Products.
• “Restricted Area” means a physical or technical barrier, managed by an Access Control System, that separates restricted space from unrestricted space (e.g., parking gates, turnstiles, doors, elevators, multi-function printers, lockers, or other types of entitlements), at, within, or adjacent to a building.
• “Services” means, collectively, (i) the Implementation Services and (ii) the Support Services.
• “Support Services” means the SwiftConnect services set out in the Schedule for Support Services.
• “Supporting System” has the meaning set out in Section 1.2.b) (Supporting Systems) of the Schedule for the AccessCloud Platform.
• “SwiftConnect Mobile App” means SwiftConnect’s mobile application.
• “SwiftConnect Platform” means the AccessCloud Platform and other cloud services and offerings (if any) that SwiftConnect chooses to make available to end users and subscribers, as specified in this Agreement.
• “System Documentation” means user and system administrator manuals, tools, software, and other instructions for using a software application (including web-based and mobile applications) or other system concerning the SwiftConnect Platform and/or the Platform APIs, to the extent generally made available by SwiftConnect.
• “Term” has the meaning set out in Section 17 (Term and Termination).
• “Transaction Log Report” has the meaning set out in Section 2 (Transaction Logs) of Appendix 1 to the Schedule for the AccessCloud Platform.
• “Transaction Log” has the meaning set out in Section 2 (Transaction Logs) of Appendix 1 to the Schedule for the AccessCloud Platform.
• “Transaction” means an interaction between a Credential and an applicable End User-Side Control System, as further defined in Section 2 (Transaction Logs) of Appendix 1 to the Schedule for the AccessCloud Platform.
• “Update” means additions, security patches, and other updates that SwiftConnect develops for a Product and provides to customers without additional fees.
• “Upgrade” means an enhancement to a Product that introduces new features or functions, and for which SwiftConnect charges additional fees.
• “User Management Instructions” has the meaning set out in Section 3 (Portal) of Appendix 1 to Schedule for the AccessCloud Platform.

The End User has subscribed to the Products set out in this Agreement.

• 3. Platform Services and SLAs.
  • 3.1. Implementation Services. SwiftConnect will provide the Implementation Services (if any) set out in this Agreement in accordance with the Implementation Plan.
  • 3.2. Support Services. SwiftConnect will provide support for applicable Products in accordance with the Schedule for Support Services.
  • 3.3. Service Levels. Applicable Products will comply with the availability service levels set out in the Service Level Agreement Schedule.
• 4. Subscription Rights.
  • 4.1. SwiftConnect’s Grant of Rights to End User. SwiftConnect hereby grants to the End User, under SwiftConnect’s Intellectual Property Rights and during the Term, a non-exclusive, non-sublicensable, non-transferable license to access and use the SwiftConnect Platform and System Documentation in accordance with the Agreement, any associated System Documentation, and for their intended purposes. The End User acknowledges that its rights to the Portal consist of cloud-based access (i) to the instance of the current version of the SwiftConnect Platform that reside in object code form on servers controlled by SwiftConnect and that SwiftConnect generally makes available to all end users; and (ii) via a mechanism approved by SwiftConnect, which may include a SwiftConnect-provided API, software development kit (SDK), or command line interface.
  • 4.2. Services Work Product; Configurations. In the course of providing Implementation Services, Support Services or other work under this Agreement, SwiftConnect may create work product or other developments relating to the SwiftConnect Platform (collectively, “Work Product”). Work Product will be deemed to be Updates to the SwiftConnect Platform, and licensed to the End User in accordance with Section 4.1 (SwiftConnect’s Grant of Rights to End User). The End User agrees that SwiftConnect shall, as between the Parties, own and be assigned all right, title and interest in and to Work Product (including Intellectual Property Rights) and agrees to reasonably cooperate, at SwiftConnect’s expense, to further document such ownership.
  • 4.3. Transaction Log Reports. SwiftConnect hereby grants to the End User, under SwiftConnect’s Intellectual Property Rights, the license and associated rights in Transaction Log Reports set out in the Schedule for the AccessCloud Platform.
  • 4.4. AccessCloud API. If the End User will be using the AccessCloud API, SwiftConnect hereby grants to the End User, under SwiftConnect’s Intellectual Property Rights and during the Term, a non-exclusive, non-transferable license to copy, integrate with, and otherwise use such AccessCloud API for purposes of achieving and leveraging interoperability between the AccessCloud Platform and the End User’s other internal systems.
  • 4.5. Ownership of SwiftConnect Platform and System Documentation. Except for the limited rights granted in this Section 4 (Subscription Rights), as between the Parties, SwiftConnect owns, and the End User has no rights to, the SwiftConnect Platform, System Documentation, Work Product, Transaction Log Reports and their contents, and the AccessCloud API (and Intellectual Property Rights therein).
• 5. End User Data.
  • 5.1. Responsibility for End User Data. As between the Parties, the End User shall be responsible for the accuracy, integrity, and completeness of End User Data, and for the timely provision of End User Data to the SwiftConnect Platform. SwiftConnect has no obligation to back up End User Data. SWIFTCONNECT HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF END USER DATA. In the event of any loss, destruction, damage, or corruption of End User Data under SwiftConnect’s possession or control, SwiftConnect shall, as its sole obligation and liability and as End User’s sole remedy, use commercially reasonable efforts to restore the End User Data from SwiftConnect’s then-current backup of such End User Data (if any) in accordance with SwiftConnect’s then-current backup policy. If any End User Data is corrupt or contains errors, and such End User Data damages or corrupts SwiftConnect’s system or network, then End User shall be liable for, and shall promptly reimburse SwiftConnect for, all costs and expenses incurred by SwiftConnect to remediate such damage or corruption.
  • 5.2. Limited Permission Granted to SwiftConnect; Ownership. The End User hereby grants to SwiftConnect, during the Term, a non-exclusive, non-transferable, limited permission and license to modify, reproduce, access, distribute, and use End User Data, solely for purposes of SwiftConnect’s performance of its obligations under this Agreement. The End User shall be solely responsible for obtaining necessary consents to grant the license to SwiftConnect in this Section 5.2 (Limited Permission Granted to SwiftConnect; Ownership). As between the Parties, the End User shall be the sole and exclusive owner of End User Data.
• 6. Branding. If the End User has requested that SwiftConnect brand elements of the SwiftConnect Platform with one or more of the End User’s Marks and SwiftConnect has agreed to such branding, then the End User hereby grants SwiftConnect, under the End User’s Intellectual Property Rights and during the Term, a non-exclusive, limited license to use and display the End User’s Marks identified. All goodwill associated with SwiftConnect’s use of such Marks shall inure solely to the benefit of the End User. Upon the End User’s request and at the End User’s sole discretion, SwiftConnect shall timely remove such branding of the SwiftConnect Platform under the End User’s Marks.
• 7. Privacy; Security. SwiftConnect shall process Personal Information included in End User Data, and safeguard the security of such Personal Information, in accordance with the Data Protection Agreement Schedule.
• 8. Restrictions. Unless otherwise set out in this Agreement, the End User shall not, and shall not permit others to, modify, reuse, disassemble, decompile, or reverse engineer any SwiftConnect Platform or System Documentation.
• 9. Fees. End User acknowledges that Reseller, not End User, has paid or will pay SwiftConnect for End User’s access to and use of the SwiftConnect Platform. Reseller’s failure to pay SwiftConnect shall be a material breach of this Agreement for which SwiftConnect shall be entitled to terminate or suspend End User’s access and use of the SwiftConnect Platform after SwiftConnect provides notice of such nonpayment to End User and Reseller. Notwithstanding the generality of the foregoing, SwiftConnect may, at the discretion of SwiftConnect, provide End User with the right to cure such nonpayment by Reseller in order for End User to continue to access the SwiftConnect Platform.
• 10. Confidentiality. Confidential or sensitive information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) under this Agreement shall be governed as follows:
  • 10.1. Confidential Information. The term “Confidential Information” means all information the Receiving Party accesses or receives from the Disclosing Party pursuant to this Agreement, whether oral or in writing (including electronic transmission) concerning the Disclosing Party’s business, technology, finances, customers or prospective customers, security, plans, methods, research and development, prototypes, software, books and records, and other similar information and materials: (i) that are designated as “Confidential” or “Proprietary” by the Disclosing Party, or (ii) that by the nature of the circumstances surrounding disclosure, or the information itself, should be treated as confidential.
  • 10.2. Non-Disclosure; Standard. The Receiving Party shall maintain the Disclosing Party’s Confidential Information in strict confidence and shall not use or disclose such Confidential Information except for purposes permitted under this Agreement. The Receiving Party shall be entitled to disclose such Confidential Information on a need-to-know basis to its employees, agents, subcontractors, attorneys, accountants, and investors, provided the same are bound by non-disclosure and confidentiality obligations no less protective than those set out in this Agreement. The Receiving Party shall use at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own Confidential Information, but shall not use less than reasonable care and diligence.
  • 10.3. Exceptions. The Receiving Party’s obligations with respect to Confidential Information shall not apply to Confidential Information that the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; or (iii) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
  • 10.4. Judicial Orders. The Receiving Party shall be permitted to disclose the Disclosing Party’s Confidential Information if a subpoena, discovery request, court order, or other request or requirement of a governmental body (with requisite jurisdiction) or other applicable law requires that such Confidential Information be produced or disclosed, provided that the Receiving Party (unless expressly prohibited by the governmental body) gives the Disclosing Party notice of such requirement and cooperates with the Disclosing Party in seeking a protective order or other applicable relief. The Receiving Party will furnish only that portion of the Confidential Information that the Receiving Party is advised by counsel is legally required to be furnished and will exercise commercially reasonable efforts to assist Disclosing Party in its efforts to obtain reliable assurance that confidential treatment will be accorded the furnished Confidential Information.
• 11. Code of Conduct; Revocation or Suspension of Use Privileges. The End User’s and its Credentialed Users’ use of the SwiftConnect Platform is subject to the code of conduct set out below (the “Code of Conduct”). SwiftConnect reserves the right to revoke or suspend the End User’s use (or non-compliant Credentialed Users’ use) of some or all of the SwiftConnect Platform for activities that breach this Code of Conduct or otherwise violate this Agreement, with or without prior notice. SwiftConnect shall be entitled, using reasonable and industry-accepted methods, to inform Eligible Users and Credentialed Users of this Code of Conduct and the consequences of non-compliance with the Code of Conduct. Under this Code of Conduct, the End User and its Credentialed Users shall not:
  • 11.1. Use the SwiftConnect Platform or System Documentation for purposes that are unlawful, offensive, interfering with the privacy of others, or otherwise prohibited by this Agreement;
  • 11.2. Use the SwiftConnect Platform or System Documentation in a manner designed to disable, overburden, or impair the SwiftConnect Platform or interfere with another party’s use and enjoyment of the SwiftConnect Platform, System Documentation, or other SwiftConnect offerings;
  • 11.3. Seek to obtain access to any portion of the SwiftConnect Platform or related materials, accounts, or information through hacking, data harvesting, data mining, or through other means SwiftConnect has not intentionally made available to the End User through the SwiftConnect Platform or System Documentation;
  • 11.4. Access the SwiftConnect Platform or System Documentation for the purpose of building a competitive product or service or copying its features or user interface; or
  • 11.5. Infringe SwiftConnect’s or any third-party’s Intellectual Property Rights, or other proprietary rights or rights of publicity or privacy.
• 12. Authorized and Unauthorized Transactions.
  • 12.1. Passwords. Wherever passwords or third-party authentication systems are used to control access to AccessCloud Platform functionality, SwiftConnect will treat anyone who successfully authenticates as an authorized user from the End User, and anyone who uses a Credential as the Credentialed User registered to such Credential. SwiftConnect recommends that the End User maintain, and instruct its Credentialed Users to maintain, all Credentials and authentication factors such as passwords in strict confidence and to notify SwiftConnect promptly of unauthorized use or suspected unauthorized use of such authentication factors. SwiftConnect will timely deactivate an AccessCloud Platform account or Credential upon the End User’s request.
  • 12.2. Fraud Detection. The End User agrees to cooperate with SwiftConnect and provide assistance in connection with fraud detection, reporting, and prevention efforts. Subject to the confidentiality obligations hereunder and subject to applicable law, the End User agrees to keep SwiftConnect informed of the progress of any fraud investigation to the extent it affects Confidential Information, Personal Information, the improper use of Credentials, the improper provisioning of Credentials, or other associated activities or threats.
  • 12.3. No Liability for Unauthorized Transactions. SwiftConnect will not be liable to any person or entity for a Transaction initiated by a person or entity who is not authorized to make a Transaction, including, without limitation any fraudulent Transaction.
• 13. Feedback. The term “Feedback” means suggestions, ideas, feature requests, and recommendations made by the End User relating to the SwiftConnect Platform or other elements of SwiftConnect’s business. If the End User chooses to provide Feedback to SwiftConnect, then the End User hereby transfers to SwiftConnect the End User’s rights in such Feedback (including associated Intellectual Property Rights).
• 14. Representations and Warranties.
  • 14.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party: (i) that it is duly organized, validly existing and in good standing, and is qualified and/or licensed to do business in all jurisdictions to the extent necessary to carry out its obligations under this Agreement; (ii) that its execution, delivery and performance of this Agreement will not violate or constitute a default under any agreement of such Party; and (iii) that it has the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform its obligations under this Agreement.
  • 14.2. End User Representations and Warranties. The End User represents and warrants to SwiftConnect that: (i) it has secured all rights (including any consents with respect to Personal Information) in End User Data necessary to permit SwiftConnect’s access, use, and processing of End User Data in accordance with this Agreement; (ii) it will not upload or release viruses or malicious code to the SwiftConnect Platform or System Documentation; (iii) SwiftConnect’s use of End User Data in accordance with this Agreement complies with End User’s privacy policy; (iv) End User obtains sufficient consent from, and provides sufficient notice to, application users as to its privacy practices (as set out in such privacy policy), all in accordance with applicable law; (v) it shall comply with applicable law; and (vi) SwiftConnect’s performance of its obligations herein in accordance with this Agreement will not cause or result in any claims from third parties retained or utilized by the End User to provide goods or services.
  • 14.3. SwiftConnect Representations and Warranties. SwiftConnect represents and warrants to the End User: (i) that the Implementation Services and Support Services will be performed in accordance with accepted industry practice and by qualified individuals; (ii) that the Products will substantially conform to applicable System Documentation; and (iii) that software components of the Products will be scanned using commercially available vulnerability scanning software in accordance with accepted industry practice.
  • 14.4. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET OUT IN SECTION 14.3 (SwiftConnect Representations and Warranties), THE SWIFTCONNECT PLATFORM, SYSTEM DOCUMENTATION, AND ALL SWIFTCONNECT PERFORMANCE OBLIGATIONS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND SWIFTCONNECT HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
• 15. Indemnification. The End User shall defend, indemnify, and hold SwiftConnect and its Affiliates and their respective officers, directors, employees, and agents harmless from and against any third party claim, action, suit, or proceeding resulting from the End User’s (i) use of the SwiftConnect Platform or System Documentation in a manner not authorized by this Agreement, or (ii) breach of its representations and warranties, and shall indemnify SwiftConnect for all losses, damages, liabilities, and all reasonable expenses and costs (including, but not limited to, attorneys’ fees) incurred by SwiftConnect in any such claim, action, suit, or proceeding. SwiftConnect shall: (a) give End User reasonable written notice of any claim, action, suit, or proceeding for which SwiftConnect is seeking indemnification; provided, however, that any failure to provide such notice shall not relieve End User of End User’s obligations under this Section 15 (Indemnification) except to the extent that End User are materially prejudiced by such failure. In the event of a claim under this Section 15 (Indemnification), SwiftConnect shall (a) grant control of the defense and settlement to End User; provided, however, that End User shall not enter into any settlement that impacts SwiftConnect’s rights without SwiftConnect’s prior written consent, and (b) reasonably cooperate with End User at End User’s expense. SwiftConnect is entitled to participate in any defense at its own expense with counsel of its own choosing.
• 16. Limitation of Liability. END USER ACKNOWLEDGES THAT RESELLER, NOT END USER, HAS PAID OR WILL PAY SWIFTCONNECT FOR END USER’S ACCESS TO AND USE OF THE SWIFTCONNECT PLATFORM. ACCORDINGLY, IN NO EVENT SHALL SWIFTCONNECT BE LIABLE TO END USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF
  ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, EVEN IF SWIFTCONNECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SWIFTCONNECT’S TOTAL AGGREGATE LIABILITY TO END USER FOR ANY CLAIMS OR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY SWIFTCONNECT FOR THE PRODUCTS AT ISSUE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
• 17. Term and Termination. Unless earlier terminated as provided herein, this Agreement shall come into force and effect on the Effective Date and shall continue for the period selected by Reseller in the Ordering Document(s) (the “Term”). If either Party materially breaches any obligation under this Agreement, then the non-breaching Party may terminate this Agreement (in whole or in part) for cause upon written notice after (i) first providing the other Party with written notice of the breach, and (ii) providing thereafter a thirty (30) day opportunity to cure beginning on the date of receipt by the alleged breaching Party of such a notice. The expiration or termination of this Agreement shall not affect any obligation that accrued prior to such expiration or termination. Unless otherwise mutually agreed, a Party’s termination of a Schedule will constitute a termination of the entire Agreement.
• 18. Effect of Termination or Expiration. Immediately upon termination or expiration of this Agreement or the corresponding Ordering Document: (i) SwiftConnect shall cease providing the SwiftConnect Platform or corresponding Products; (ii) all of the End User’s licenses under this Agreement or to the corresponding Products shall end; and (iii) each Party shall return or permanently destroy all tangible Confidential Information of the other Party and certify the same in writing upon request (provided SwiftConnect may retain a copy of the End User’s Confidential Information to the extent required for legal compliance and copies to the extent the same resides on backup servers).
• 19. Survival. In addition to any right or obligation that by its nature is intended to survive any termination or expiration of this Agreement, the
  following Sections of this Agreement shall survive any termination or expiration of this Agreement: (i) Section 4.5 (Ownership of SwiftConnect Platform and System Documentation); (ii) Section 5.2 (Limited Permission Granted to SwiftConnect; Ownership) (solely with respect to ownership of End User Data); (iii) Section 10 (Confidentiality); (iv) Section 13 (Feedback); (v) Section 15 (Indemnification); (vi) Section 16 (Limitation of Liability); (vii) Section 20 (Order of Precedence); and (viii) Section 21 (General).
• 20. Order of Precedence. If there is a conflict between the Ordering Document, the terms and conditions of this Agreement, or any Schedules, the following order of precedence shall apply: this Agreement shall take precedence over, and control, the terms and conditions of the Ordering Document, and the other Schedules.
• 21. General.
  • 21.1. No Implied Rights. No rights shall be implied under this Agreement, based on any course of conduct, or on any construction or interpretation thereof. All rights and licenses not expressly granted in this Agreement are reserved.
  • 21.2. Notices. Notices under this Agreement shall be in writing, in English and delivered to the Parties at the address set out on this Agreement. Notices will be deemed to have been duly given (i) when received, if personally delivered; (ii) when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; (iii) the day after being sent, if sent for next day delivery by recognized overnight delivery service; or (iv) upon receipt, if sent by certified or registered mail, return receipt requested.
  • 21.3. Assignment. This Agreement is not assignable by End User without the prior written consent of SwiftConnect. SwiftConnect reserves the right to assign the rights and obligations under this Agreement for any reason in SwiftConnect’s sole discretion. Any purported assignment, delegation, or transfer in violation of this Section 21.3 (Assignment) is void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
  • 21.4. Severability; No Waiver; Headings. If any provision of this Agreement is determined to be unenforceable or invalid by applicable law or court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and, in such event, such provision shall be changed and interpreted to best accomplish the objectives of such provision within the limits of applicable law or court decision. No failure or delay in exercising any right under this Agreement will operate as a waiver of such right or preclude any further exercise. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
  • 21.5. Governing Law. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of New York without regard to any conflict of laws principles. The exclusive venue and jurisdiction for any action or proceeding arising out of this Agreement shall be the state and federal courts located in New York, NY. The Parties accept the personal jurisdiction of such courts.
  • 21.6. Subcontracting. SwiftConnect shall be entitled to use subcontractors in the performance of SwiftConnect’s obligations under this Agreement; provided, however, that if SwiftConnect engages subcontractors, then SwiftConnect shall remain liable for all obligations under this Agreement as though no such subcontracting had occurred.
  • 21.7. Independent Contractors. The Parties are independent contractors, and no agency, partnership, joint venture, or employer-employee relationship shall be created by this Agreement. Neither Party shall have the power to obligate or bind the other Party.
  • 21.8. Announcements. Neither Party shall issue or release any statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, without the prior written consent of the other Party, which may be withheld or withdrawn for any reason; provided, however, that SwiftConnect may, without the End User’s consent, include the End User’s name in a listing of SwiftConnect’s current or former customers in promotional and marketing materials, and in SwiftConnect’s earnings announcements.
  • 21.9. Integration; Modifications. This Agreement and the additional documents referenced herein set forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of this Agreement; provided, however, that this Agreement does not supersede, replace, or supplement any other written agreement between the Parties related to SwiftConnect’s development platform or tools (including APIs and SDKs). Neither Party is relying on any warranties, representations, assurances, or inducements not expressly set forth herein. SwiftConnect shall be entitled to modify this Agreement from time to time at SwiftConnect’s discretion. Unless otherwise set out herein, if SwiftConnect modifies this Agreement, then such modifications shall take effect proactively upon the next renewal period for any Products in an Ordering Document.
  • 21.10. Incorporation of Schedules. The following schedules are incorporated herein by reference (each a “Schedule” and together the “Schedules”). Each Schedule is available at https://www.swiftconnect.com/legal-hub/:
    

    Schedule	Description
    Schedule for the AccessCloud Platform	Describes the features of the AccessCloud Platform, and the additional terms and conditions that apply to these features and the AccessCloud Platform.
    Schedule for Support Services	Describes the technical support that SwiftConnect provides for the Products.
    Service Level Agreement Schedule	Provides SwiftConnect’s commitment to make the Products available for sending and receiving data to and from its network edge.
    Data Protection Agreement Schedule	Describes the measures that SwiftConnect will take to safeguard the security of End User Data resident on the Products or otherwise in SwiftConnect’s possession.