Swiftpage End User License Agreement
Swiftpage is a subsidiary of Summit 5 LLC. You must accept the End User agreement to continue.
THIS CUSTOMER AGREEMENT (the "Agreement"), including all attachments and exhibits hereto is made and entered into as of (the "Effective Date") by and between Summit 5, LLC ("Company"), a Colorado corporation, with its principal place of business at 383 Inverness Pkwy, Suite 340, Englewood, CO 80112, and ("Customer").
1. DEFINITIONS - As used herein, the following
terms shall have the meanings ascribed to them below:
a."SWIFTPAGE EMAIL" - means an Email created and sent by Summit 5 which contains customer Content.
b."CONTENT" - means any text or images that Customer provides to Company for use within an email sent by the Company.
2. SWIFTPAGE SERVICES - Company will provide Swiftpage Services (the "Services") to Customer conditioned upon Customer's timely payment of applicable fees due hereunder and Customer's timely performance of its obligations under this Agreement. The Services shall be provided in accordance with Company's standard policies and procedures. Customer agrees to cooperate with Company as reasonably requested.
3. SUMMIT 5'S OBLIGATIONS - Summit 5 shall make best efforts possible to perform the services hereunder in a manner satisfactory to Customer to include a high level of service reliability and a reasonable level of responsiveness to any communications or requests made by Customer.
4. CUSTOMER'S OBLIGATIONS - Upon executing this Agreement, Customer:
a. represents and warrants that it complies and will continue to comply, and assures that its officers, employees, agents, subcontractors, service providers, and suppliers comply, with any applicable laws or regulations;
b. represents and warrants that any Content provided to Company or used in connection with the Services will not violate any third party rights including, but not limited to, intellectual property and privacy rights;
c. acknowledges and accepts that Customer is solely responsible for the accuracy of any Content provided by Customer to Company and for reliance on such Content by Company, Customer or any third party;
d. acknowledges and accepts that Company's use of the Content for purposes of sending email may potentially alter the appearance formatting, and/or "look and feel" of the Content.
e. acknowledges and accepts that Company's use of the service will not include the sending of unsolicited email (sometimes called "spam") according to the Federal Law CAN-SPAM Act of 2003
f. represents and warrants that the email addresses provided to the Swiftpage Email service are individuals that have given permission to the Customer to be emailed. Permission is implied if they are a customer or have asked for information.
5. CUSTOMER'S RESTRICTIONS ON USE - Customer agrees
a. not to use the Service, in whole or in part, in either an unlawful manner, or in any manner specifically restricted or prohibited by this Agreement. Customer represents and warrants that Customer will not attempt in any way to copy, reproduce, modify, reverse engineer or create derivative works from any portion of Summit 5's software or code, or to use the Service in any way that could damage, overburden or otherwise impair the Service or in any way limit any other customer's use of the Service. Customer will use the service solely for Customer's business purposes and will not resell or provide access to any of Company's services to any other party unless express written authorization is granted by Company in advance.
b. not to use the individual user id from different end user email addresses. This does not include generic company email address like info@ or Sales@. Each User Id is licensed for a single individual (User).
6. OWNERSHIP - Company shall retain all right, title and interest in and to the Services and its underlying technology, and any other products and services of the Company. This Agreement does not grant any right or license to Customer, except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision from this Agreement or by the conduct of the parties.
7. COMPENSATION - All amounts payable to Company under this Agreement are payable in United States Dollars and shall be due upon receipt. In addition to such amounts, Customer will pay sums equal to taxes (including, without limitation, sales, withholding, Value Added and similar taxes) paid or payable, however designated, levied, or based on amounts payable to Company hereunder or on Customer's use of the Services under or in accordance with the provisions of this Agreement, but exclusive of federal, state, and local taxes based on Company's net income. Notwithstanding any other rights of Company, in the event of late payment by Customer of thirty days or more, Company will be entitled to interest on the amount owing at a rate of 1.5% per month compounded on a daily basis from the due date of payment until the date of payment receipt. Customer will reimburse Company for all collection costs, including, but not limited to, reasonable attorneys' fees, costs and expenses.
8. DISCLAIMER OF WARRANTIES - THE SERVICE IS PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THIS AGREEMENT IS NOT INTENDED TO IMPLY THAT A) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS; B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR FREE FROM ERRORS; C) THE SOFTWARE WILL BE FREE FROM DEFECTS OR THAT ANY DEFECTS FOUND IN THE SOFTWARE WILL BE CORRECTED; AND D) THE QUALITY OF ANY PRODUCT, SERVICE, INFORMATION OR MATERIAL PURCHASED OR OBTAINED IN CONNECTION WITH THE SERVICE WILL MEET CUSTOMER'S EXPECTATIONS.
9. LIMITATION OF LIABILITY - IN NO EVENT SHALL SUMMIT 5 BE HELD LIABLE IN ANY WAY WHATSOEVER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FROM LOSS OF PROFITS, BUSINESS, BUSINESS OPPORTUNITIES, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OF ANY KIND, HOWEVER ARISING, INCLUDING NEGLIGENCE, OUT OF OR IN CONNECTION WITH A) CUSTOMER'S USE OR INABILITY TO USE OR ACCESS SUMMIT 5'S SERVICE; B) THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICE; C) ANY CONTENT OBTAINED THROUGH THE USE OF THE SERVICE; D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ASSOCIATED WITH THE SERVICE OR E) ANY OTHER MATTER PERTAINING TO THE SERVICE. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, SUMMIT 5'S ENTIRE AGGREGATE LIABILITY TO CUSTOMER AND/OR ANY THIRD PARTY FOR DAMAGES ARISING FROM PERFORMANCE OR NON-PERFORMANCE BY SUMMIT 5, OR IN ANY WAY RELATED TO THIS AGREEMENT, SHALL NOT EXCEED THE AMOUNT CUSTOMER ACTUALLY PAID FOR THE SERVICES PRIOR TO SUCH CLAIM.
10. INDEMNIFICATION - Customer agrees to indemnify and hold harmless Summit 5 LLC and any of its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim, suit, loss, damage, or defense costs, including actual attorneys fees, arising out of Customer's use of the Service, any violation of the Agreement or any alleged violation of any copyright, patent, trademarks, service marks, trade names, or other intellectual property used in connection with Customer's use of the Service. This indemnity shall survive termination of this Agreement and Customer's use of the Service.
11. PROPRIETARY RIGHTS & SOFTWARE LICENSES - Customer fully understands and acknowledges that the Service and its underlying software (the "Software") and all of its components is either owned by Summit 5 LLC or licensed to Summit 5 and contains proprietary information which is protected by intellectual property law. Summit 5 conveys to Customer a non-exclusive, non-transferable, limited license to use the Service in a manner consistent with this Agreement, which in no way includes the right for Customer to sub-license, or in any way distribute the Software. Any attempt to copy or reproduce the Summit 5 Software to another server or to disassemble, decompile, reverse engineer or to otherwise uncover its source code is expressly prohibited, and will be fully enforced to the maximum extent permissible by law.
12. COPYRIGHT AND TRADEMARK NOTICES - All materials pertaining to the Service are owned, copyrighted, and licensed by Summit 5 LLC and its affiliates. All rights reserved. Reproduction and distribution of any Summit 5 copyrighted materials is strictly prohibited without the prior written consent of Summit 5.
13. TERMINATION & CANCELLATION - Either party may terminate this Agreement at any time. Summit 5 shall not be obligated to refund any fees it has collected.
14. NOTICE - Notice provided by either party may consist of either email or regular mail, and shall be considered delivered upon receipt by the receiving party.
15. NO RESALE, ASSIGNMENT OR TRANSFER - Customer agrees not to resell, assign, or transfer its rights or obligations hereunder to another party or entity without obtaining prior express written authorization from Summit 5.
16. ENTIRE AGREEMENT - The Agreement contains the entire understanding and agreement between the parties and shall supersede any and all prior communications, including but not limited to, proposals, negotiations, representations, and writings, both written and oral.
17. MISCELLANEOUS - Company will not be liable for non-performance or breach of this Agreement if such non-performance or breach is caused by events beyond Company's control. Company's failure to exercise or enforce any provision of the Agreement shall not constitute a waiver of such provision. If any provision of the Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be struck and the entire remaining agreement shall remain in effect.
Swiftpage Anti-Spam Policy Terms