Master Subscription Agreement

This MASTER SUBSCRIPTION AGREEMENT (the “Agreement”) governs any and all Order Forms entered into by an entity or individual (“Customer”) and Swantide Inc.(“Swantide”) a Delaware corporation with offices at 1808 Pacific Ave Apartment 501, San Francisco CA 94109. Customer and Swantide are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions

“Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.

“Beta Services” means the features and/or functionality of the Subscription Services that may be made available to Customer to try at its option at no additional charge and which are clearly designated as beta, limited release, non-production, evaluation, labs or by a similar description."Client” means a client of Customer on whose behalf Customer utilizes the Subscription Services.“

‍Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Swantide’s Confidential Information shall include the Swantide Property and the terms of this Agreement and all Order Forms. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. The fact that any portion of the Confidential Information may be subject to one of the foregoing exceptions (i) through (iv) shall not automatically exclude any combination of Confidential Information from protection under this Agreement unless the entirety of such Confidential Information also falls under the same exception(s).“Customer Property” means any content or data supplied by Customer to Swantide, either directly or indirectly (for example, through the Subscription Service or integration with a Third Party Product), or developed by Customer while using the Subscription Service.

“Customer Property” also includes any content or data of Clients that is provided to or otherwise submitted, directly or indirectly, to Swantide in connection with the Subscription Service and the Customer Workflows. 

"Customer Workflow” means any and all Workflows and associated metadata components built solely by Customer, and any related tags created by Customer. For the avoidance of doubt, Customer Workflows shall not include any Swantide IP or any elements or components thereof.

“Documentation” means all documentation and other instructional materials regarding the use of the Subscription Services that is made generally available by Swantide to its customers.

"Instance” means a single occurrence of the running of the Swantide software.

“Order Form” means an ordering document for Subscription Services purchased from Swantide that has been executed hereunder by the Parties (or, in the case of an online transaction, which has been electronically accepted by Customer).

“Subscription Services” means the software services and platform provided by Swantide, including (i) the web and other user interfaces, applications, and software provided to Users, (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing, (iii) Basic Support, and (iv) any services delivered pursuant to a Support Subscription.

“Subscription Term” means the subscription period set forth in the applicable Order Form during which Swantide agrees to provide the Subscription Services to Customer.

“Swantide Property” means (i) the Subscription Services, (ii) the Documentation, and (iii) all content and other materials and software supplied by Swantide in connection with, or used by Swantide in providing, the Subscription Services, including all Workflows created by Swantide.

“Third Party Products” means certain third party applications, systems, or services used by Customer, but not supplied by Swantide, that are designed to interoperate with the Subscription Services (for example, Customer’s CRM software).

“Users” means all users that are authorized to access Customer’s account on the Subscription Services.

“Workflow” means a grouping of Salesforce metadata.

2. Subscription Services

(a) Provision of Subscription Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Swantide hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Subscription Services in accordance with the terms and conditions of this Agreement and all Order Forms.

(b) Order Forms. Each Order Form for Subscription Services will describe additional mutually agreed-upon limitations on use of the Subscription Service, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users, the number of permitted Instances, the number of permitted Workflows and the permitted scope of use of the Subscription Services. The number of permitted Instances means the current Instances utilized by Customer. For the avoidance of doubt, if the Customer disconnects one of its existing Instances, then such Instance will be considered used and will not become an available Instance unless otherwise stated in the applicable Order Form. The Parties may confirm their mutual agreement, and thereby create a binding obligation with respect to renewals of existing Order Forms or Subscription Upgrades (as defined below), via email or via confirmation within the user interface of the Subscription Services without the need for an additional Order Form executed by the Parties.

(c) Platform Guidelines. Customer hereby acknowledges that it will at all times comply with, and ensure that all of its Users comply with, the platform guidelines made available at www.swantide.com/terms/platform-guidelines (or any successor website), which are hereby incorporated by reference (the “Platform Guidelines”).

(d) Customer Cooperation. Customer acknowledges that Swantide’s ability to timely deliver the services is dependent upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to Swantide, on a timely basis, all information, materials, and assistance reasonably necessary for Swantide to perform the services, including information, material, or assistance identified in an Order Form. Swantide’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.

(e) Staffing. Swantide shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any service under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any services under this Agreement. Swantide will be responsible for the acts or omissions of its employees and contractor personnel.

(f) Appointment as Agent. Customer hereby appoints Swantide to serve as its agent for purposes of purchasing Salesforce.com (“SFDC”) and/or HubSpot (“HS”) services and/or products and accepting accompanying SFDC or HS terms and conditions on Customer’s behalf. Customer hereby grants to Swantide full authority to bind Customer and its affiliates to SFDC or HS terms and conditions agreements. Swantide shall make such purchases pursuant to written instructions from Customer and shall promptly provide any and all terms and conditions and/or agreements to which it binds Customer. Customer agrees that it shall indemnify and hold Swantide harmless from any and all costs, damages, and expenses (including reasonable attorneys’ fees) suffered or incurred by Swantide as a result of any claim brought by SFDC or HS against Swantide related to any purchase made by Swantide on behalf of Customer pursuant to this Agreement.

(g) Basic Support. Customer may be permitted to submit tickets or other requests or messages to Swantide from time to time, through such channels as Swantide may make available, relating to bugs or other issues identified by Customer through its use of the Subscription Services. Swantide will use commercially reasonable efforts to resolve issues raised by Customer that are specific to the Subscription Services alone (“Swantide-Specific Requests”). Swantide makes no commitment to Customer with respect to responding to or attempting to resolve any issue to the extent related to any SFDC-provided technology or services (“SFDC Requests”).

(h) Support Subscriptions. From time to time Swantide may make one or more tiers of support subscription available for Customer under an Order Form (each, a “Support Subscription”), any of which may require the payment of additional Fees as set forth in the Order Form. Any unused “per month” entitlements under a Support Subscription (such as an entitlement to submit a certain number of support tickets of a certain type per month, or an entitlement to secure a certain number of support hours to address certain requests per month), do not roll over into any subsequent month, and are forfeited at the end of each month if not used.

(i) Additional Support. From time to time Swantide may permit Customer to purchase additional support at an hourly support rate or on such other terms and conditions as Swantide may establish.

(j) Use of Artificial Intelligence. Swantide may make available certain artificial intelligence-enabled functionality as part of the Subscription Services or as part of a Support Subscription, or may supplement its offerings through the use of such functionality (for example, an AI-enabled chat interface that responds to user queries and/or makes recommendations for next steps based on user queries), which may be subject to an additional license fee. Swantide does not make any representations or warranties with respect to the use of any such functionality or the results that may be obtained; Customer acknowledges that such tools are probabilistic in nature and do not guarantee accuracy or completeness. Swantide reserves the right to throttle or suspend use of any such functionality at any time if Customer’s use imposes legal risk or excessive cost on Swantide.
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3. Fees and Payment Terms

(a) Fees. Customer will pay Swantide all fees specified in or otherwise incurred pursuant to an Order Form (“Fees”) in accordance with this Section 3 and the applicable Order Form. If Customer adds additional Subscription Services during a Subscription Term (a “Subscription Upgrade”), any incremental Fees associated with such Subscription Upgrade will be prorated over the remaining period of the then-current Subscription Term and charged to Customer and due and payable in accordance with Section 3(b). In addition, unless otherwise set forth in an Order Form, Customer will be deemed to have executed a Subscription Upgrade with Swantide if its usage of the Subscription Services exceeds the previously purchased usage levels. In any renewal Subscription Term of such Order Form, the Fees will reflect any such Subscription Upgrades. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable, except as otherwise expressly set forth in this Agreement.

(b) Invoices and Payment. By providing a credit card or other payment method accepted by Swantide (“Payment Method”) for the Subscription Services, Customer agrees that Swantide is authorized to charge to the elected Payment Method all applicable Fees when due, and any other charges Customer may incur in connection with Customer’s use of the Subscription Services. For all purchased Subscription Services, the Payment Method will be charged on a monthly basis or at the interval indicated in the applicable Order Form. Unless otherwise specified in an Order Form, Swantide will invoice, and Customer will pay, all Fees on an annual, prepaid basis, with such invoice date being the date the applicable Order Form is fully executed by both Parties. If Swantide does not collect a Payment Method from Customer at the time of purchase, Swantide will invoice Customer for the charges at the email address on file with Swantide. Customer will pay all invoiced amounts within thirty (30) calendar days of the invoice date. Unless otherwise specified in an Order Form, Customer will pay all Fees on an annual, prepaid basis. Overdue invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection.

(c) Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body arising from Swantide’s provision of the Subscription Services hereunder (collectively, “Taxes”), except any taxes assessed upon Swantide’s net income. If Swantide is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse Swantide for any amounts paid by Swantide.

4. Proprietary Rights

(a) Customer Property. As between Customer and Swantide, Customer retains all rights, title, and interest in and to the Customer Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Customer Property. Except as expressly set out in this Agreement, no right, title, or license under any Customer Property is granted to Swantide or implied hereby, and for any Customer Property that is licensed to Swantide, no title or ownership rights are transferred to Swantide with such license. Notwithstanding the foregoing, Swantide is not prohibited from creating Workflows substantially similar to the Customer Workflows, provided that Swantide develops such Workflows independently from the Customer Workflows. 

(b) Swantide Property. As between Swantide and Customer, Swantide retains all right, title, and interest in and to the Swantide Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Swantide Property (the “Swantide IP”). Except as expressly set out in this Agreement, no right, title, or license under any Swantide IP is granted to Customer or implied hereby, and for any Swantide IP that is licensed to Customer, no title or ownership rights are transferred to Customer with such license. Customer is expressly prohibited from including, or incorporating in any way, any Swantide IP in the Customer Workflows. 

(c) Licenses to Swantide. Customer hereby grants Swantide a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to access and use the Customer Property made available to Swantide or any of its Affiliates, solely as necessary for Swantide to provide the Subscription Services to Customer pursuant to this Agreement unless otherwise expressly permitted by Customer. Additionally, Customer grants Swantide a non-exclusive, revocable license to use Customer’s trademarks and logos to identify Customer as a subscriber of the Subscription Services; provided that, Customer may revoke such consent at any time in its sole discretion. By submitting to Swantide any unsolicited suggestions, enhancement requests, comments, feedback or other input relating to the Subscription Services(“Feedback”), Customer and its Users (as applicable) grant to Swantide a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Subscription Services in any manner.

5. Data Privacy and Security

(a) Hosting and Processing. Unless otherwise specifically agreed to in writing by Swantide, Customer Property will be hosted by Swantide or its Affiliates, or their respective authorized third-party service providers, in the United States.

(b) Data Processing Agreements. If (a) Customer’s use of the Subscription Services requires the processing of personal information or personal data that is regulated by the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA) or other similar privacy or data protection laws and (b) an ancillary agreement between Customer and Swantide regarding such processing activities is necessary to comply with such laws, it shall be Customer’s responsibility to advise Swantide of such compliance requirements and the Parties will negotiate in good faith and enter into such ancillary agreements, which shall be incorporated herein by reference (the “Privacy Addenda”).

(c) Swantide’s Processing of Customer Property. Customer shall, with respect to its use of the Subscription-Services, process Customer Property, including any personal information or personal data, in accordance with the requirements of applicable law, including any applicable requirement to provide notice to data subjects of the use of the Subscription-Services. For the avoidance of doubt, Customer’s instructions for the processing of Customer Property, including personal information and personal data, shall comply with applicable law. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Property, including any personal information or personal data, and the means by which Customer acquired Customer Property, including any personal information or personal data, including without limitation, any requirements to provide notice to or obtain consent of data subjects or Clients in accordance with applicable law. Customer specifically acknowledges and agrees that its use of the Subscription-Services will not violate the rights of any individual or Client. This Section 5(c) shall also apply to Customer Property relating to Clients, and Customer shall be responsible and liable for its Clients’ non-compliance with this Section 5(c). 

(d) In-Product Cookies. Whenever Customer or its Users interact with the Subscription Services, Swantide automatically receives and records information on its server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Subscription Services, as further described at www.swantide.com/privacy (or successor website). When Swantide collects this information, it only uses this data (i) to provide the Subscription Services or (ii) in aggregate form, and not in a manner that would identify Customer or its Users.

6. Confidentiality

(a) Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party with Disclosing Party’s consent or to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information. This Section 6 shall supersede any non-disclosure agreement by and between Customer and Swantide entered prior to entering into this Agreement that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to either Party’s Confidential Information.

(b) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

(c) Return of Confidential Information. At any time upon the request of the Disclosing Party, the Receiving Party will destroy all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.

7. Warranties; Disclaimers

(a) Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

(b) Swantide Warranties. Swantide warrants to Customer that the Subscription Services purchased by Customer will, in all material respects, perform in accordance with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Users, or arising from Customer’s negligence or improper use of the Subscription Services, from unauthorized modifications made to the Subscription Services, from use of the Subscription Services in an unsupported operating environment or manner, or that arises from Customer’s or any third party’s software or systems (including Third Party Products).

(c) Customer Warranties. Customer warrants that it will not use the Subscription Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Customer shall immediately notify Swantide of any unauthorized use of the Subscription Services. Customer warrants to Swantide that Customer’s agreements with Clients related to the Subscription Services will not conflict with the terms of this Agreement. 

(d) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SUBSCRIPTION SERVICES ARE PROVIDED “AS-IS”; (2) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) SWANTIDE’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SUBSCRIPTION SERVICES TO SUPPLYING THE SUBSCRIPTION SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SUBSCRIPTION SERVICES AGAIN.

8. Indemnification

(a) Indemnification by Swantide. Swantide will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses(collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the Subscription Services in accordance with the terms and conditions of this Agreement infringes any United States patent or copyright of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that any portion of the Subscription Services is likely to, in Swantide’s sole opinion, or does become the subject of an Infringement Claim, Swantide may, at its option and expense:(i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to Customer prepaid, unused Fees for the infringing items. Swantide shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use or supply to Swantide of any Customer Property; (2) use of the Subscription Services in combination with any software, hardware, network or system not supplied by Swantide if the alleged infringement relates to such combination; (3) any modification or alteration of the Subscription Services (other than by Swantide); or (4) Customer’s violation of applicable law or third party rights.

(b) Indemnification by Customer. Customer will defend and pay Swantide, its employees, directors and officers (the “Swantide Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Swantide Indemnified Party, arising from any Third Party Claim against an Swantide Indemnified Party (i) alleging that any Customer Property or Customer’s use of the Subscription Services beyond the license granted in this Agreement infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party; (ii) arising from Customer’s breach of this Agreement; or (iii) any claims between Customer and Clients.

(c) Indemnification Conditions. The Parties’ obligations under this Section 8 are contingent upon the indemnified Party (i) giving prompt written notice to the indemnifying Party of any claim subject to indemnification under this Section 8, except that failure to notify the other Party within such time period shall not excuse the indemnifying Party from its obligations under Section 8(a) or Section 8(b), as applicable, unless such failure materially prejudices its ability to defend such claim, (ii) giving the indemnifying Party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying Party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party without the prior express written consent of the indemnified Party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 8 are the sole obligations of the indemnifying Party and exclusive remedies available to the indemnified Party in the event of an applicable Third Party Claim.

9. Limitation of Liability

(a) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SWANTIDE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ANY PRIVACY ADDENDUM), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

(b) Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SWANTIDE HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SWANTIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SWANTIDE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY CUSTOMER OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF SWANTIDE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ANY PRIVACY ADDENDUM).

10. Term and Termination

(a) Term of Agreement. This Agreement shall become effective as of the start date specified in the first Order Form executed by the Parties and shall remain in effect until terminated in accordance with Section 10(c).

(b) Term of Subscriptions. Customer’s access to the purchased Subscription Services shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. At the expiration of each Subscription Term, the Subscription Term for all purchased Subscription Services will automatically renew for the same period as the renewing Subscription Term, unless either Party elects to not renew by notifying the other Party in writing at least 30 days before such renewal (or at any time before the renewal date, if the expiring Order Form provides for a month-to-month subscription). Except as otherwise specified in a written notice sent to Customer at least 60 days prior to a renewal (or 30 days, if the expiring Order Form provides for a month-to-month subscription), Swantide’s per-unit pricing for any renewal Subscription Term shall not increase by more than five percent (5%) over the renewing Subscription Term. Any introductory or temporary discount offered in a previous Subscription Term does not apply for a renewal Subscription Term. For the avoidance of doubt, the foregoing caps on price increases shall not apply to renewals in which a Customer is transitioning from a month-to-month subscription to a longer term subscription.

(c) Termination.
(i) Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan.

(ii) In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than thirty (30) days, continuously.

(d) Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. In the event of termination of this Agreement, (i) Customer shall discontinue use of all Swantide Property, and (ii) upon Customer’s written request made within thirty (30) days after the effective date of termination, Customer shall be entitled to export the Customer Property in the format stored by the Subscription Services for up to thirty (30) days from the date such written request is received. After such thirty (30) day period, Swantide shall have no obligation to maintain or provide any Customer Property and may thereafter unless legally prohibited, delete all Customer Property in its possession. 

11. Miscellaneous Provisions

(a) Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and Swantide will be considered an independent contractor when performing any Services hereunder.

(b) Customer Affiliates. An Affiliate of Customer may purchase Services subject to the terms of this Agreement by executing Order Forms with Swantide hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

(c) Acquired and Divested Businesses. If Customer has purchased Subscription Services under an Order Form for an unlimited number of Users within the Customer’s enterprise, a particular business unit or division or otherwise (an “ELA”), any entity or business unit acquired by Customer after the applicable Order Form date (an “Acquired Business”), including its employees, shall not be entitled to any Subscription Services provided under such Order Form. In the event an Acquired Business had previously entered into an agreement with Swantide (a “Prior Agreement”), its new status as a Customer Affiliate shall not create (i) any entitlement on the part of Customer to terminate a Prior Agreement or any Order Forms, (ii) any obligation of Swantide to refund or waive monies paid or payable under either the Prior Agreement or any Order Form, or (iii) any obligation for Swantide to extend or apply any favorable pricing in such Prior Agreements to purchases made under any Order Forms or to subsequent purchases made under the Prior Agreement. If an entity or business unit ceases to be owned by Customer during the Subscription Term of any ELA (a “Divested Entity”), the Divested Entity shall not be entitled to any Services provided under such Order Form after the date on which it ceases to be owned or controlled by Customer without Swantide’s prior written consent, which shall not be unreasonably withheld.

(d) Entire Understanding. This Agreement (including any Privacy Addenda (if applicable) and all Exhibits and Order Forms, which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.

(e) Modification; Waiver. Except for Swantide’s modification or update of the Documentation or the Subscription Service, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties.

(f) Governing Law; Venue. The Parties hereto agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in San Francisco, California (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the Parties), before a sole arbitrator, in accordance with the laws of the State of California for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the Parties and their legal counsel. All decisions of the arbitrator shall be final and binding. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.

(g) Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

(h) Notices. Except for notification methods expressly permitted under the Platform Guidelines, all notices under this Agreement to Customer shall be in writing and shall be delivered to the addresses first set forth in the Order Form(s). Notices to Swantide shall be addressed to: Swantide, Inc., Attn: Legal Department, 1527 Arguello St., Redwood City, CA 94063, with a copy to legal@swantide.com. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

(i) 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 Swantide employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify Swantide if it offers or receives any such improper payment or transfer in connection with this Agreement.

(j) Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics or pandemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in Swantide not being able to provide the Subscription Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.

(k) Export Control. The Subscription Service and related technical data and services (collectively, “Controlled Technology”) may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all applicable export and re-export control laws and regulations and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Controlled Technology is generally prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and any other country subject to relevant trade sanctions.

(l) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.