Terms of Service
Updated on 11.12.2020
The following terms and conditions (the "Terms of Service"), together with the Order Form(s) to which these Terms of Service are attached or incorporated, and other agreements constitute the agreement (“Agreement”) between Swaarm Tech GmbH with its principal place of business at Stallschreiberstr. 20, 10179 Berlin (“Swaarm”), and the customer identified in the Order Form and other agreements as (“Customer”). This Agreement is effective as of the date You activate Your account.
In these Terms of Service, the words "Swaarm", "we," and "us" refer to Swaarm Tech GmbH. The words "Customer", “Client”, “your” and "you" refer to the subscriber to the Platform Services as defined in the Order Form, whether an individual, corporation, or other entity. You may not use the Platform Services unless you accept these Service Terms and have the power and legal right to form a contract with us. Any individual subscribing to or using the Platform Services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
By signing the Order Form(s) to accompany these Terms of Service or by using Our Services, You agree to be bound by these Terms of Service and all incorporated terms. If You do not agree to these terms, do not use Our Services.
The following terms and any others defined in these Service Terms will be interpreted according to the definitions given.
- "Authorized User" means you (if you are an individual) or an individual employee or agent of yours who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.
- “Swaarm Platform” means Swaarm’s cloud platform that facilitates the Platform Services (as defined herein).
- "Swaarm API" means the application programming interfaces provided by Swaarm as a mechanism for access to the Platform Services.
- "Order Form" means Swaarm’s online or written order form or account setup form, as submitted by Customer and accepted by Swaarm, that specifies the pricing for the use of the Platform Service, and that references these Terms of Service.
- "Partner" means any third party authorized by Customer to access and use the Platform Services, or which supplies advertising or advertising inventory to Customer in connection with Customer's use of the Platform Services.
- "Platform Services" means the web-based advertising network, affiliate tracking, targeting, reporting and analytics services included in the services to be supplied by Swaarm, as defined in the Order Form (and any applicable service description referenced in the Order Form) or separate terms that reference this agreement, that are facilitated by the Swaarm Platform.
II. SCOPE OF APPLICATION AND GENERAL PROVISIONS
- These Terms of Service apply to the provision and use of Swaarm’s Platform as Software-as-a-Service (SaaS). The Services offered by Swaarm are addressed exclusively to companies or persons that legally qualify as business (Unternehmer) pursuant to Section 14 German Civil Code (Bürgerliches Gesetzbuch, BGB).
- Deviations from these Terms of Service shall only be considered agreed if they have expressly been confirmed in writing by Swaarm. In particular, the mere omission of an objection by Swaarm against any general terms and conditions of the Customer shall not cause such terms and conditions to be considered agreed. This shall also apply if Swaarm performs Services unconditionally upon knowledge of opposing terms and conditions of the Customer or terms and conditions diverging from these Terms of Service.
- For important reasons, in particular in the event of changes to statutory provisions, judicial precedence, the Platform or market conditions, Swaarm may notify the Customer of amendments to these Terms of Service. The amended Terms of Service shall be deemed to have been agreed if the Customer has not objected to the amendment within one month upon receipt of the notification and Swaarm has explicitly notified the Customer of this consequence. Regardless of the foregoing, changes to the scope of the Contractual Service (Umfang der geschuldeten Leistungen) require the express consent of the Customer.
III. PLATFORM SERVICES
- Authorization: Subject to your compliance with the terms and conditions of these Service Terms and temporally restricted to the term of the Contract, Swaarm will provide your Authorized Users with access to and use of the Platform Services which you have purchased and for which you pay, solely for your internal business purposes and in accordance with Swaarm’s relevant end-user documentation. The Platform Services and Swaarm API may be used only in accordance with the documentation and specifications provided by Swaarm. You and your Authorized Users will access the Swaarm API and Platform Services using the login credentials and Swaarm API Keys assigned to you by Swaarm. Swaarm may monitor your use of the Swaarm API to ensure quality, improve Swaarm products and services, and verify your compliance with these Service Terms. Your use of the Platform Services is further subject to any usage limitations indicated in the Order Form or in Swaarm’s applicable service description referenced therein or provided by Swaarm.
- Operation and Changes. Swaarm intends to use state-of-the-art technology and shall be entitled to regularly carry out or introduce updates, new versions or upgrades of the Swaarm Platform, Swaarm API or underlying software (the “Software”) (hereinafter referred to uniformly as “Updates”) in order to adapt the Software to new technical or commercial requirements, to implement new features, or to make changes to existing features in order to improve the Software. If and insofar as the suitability of the Software for the Contract Purpose is materially impaired by an Update (such an Update a “Material Change”), Swaarm shall inform the Customer in text form of the introduction of the Material Change at least four weeks prior to it becoming effective (a “Change Notice”). If the Customer does not object to the Material Change within two weeks after receipt of the Change Notice in text form (the “Objection Notice”), the Material Change shall become an integral component of the Contract. With each Change Notice, Swaarm shall inform the Customer of the Customer’s rights pursuant to this Section III.2, in particular: (i) the objection right, (ii) the period foreseen for objection and (iii) the legal consequences of not declaring an objection to the Material Change in time. If the Customer objects to the Material Change, Swaarm shall further provide the Software for use to the Customer without the Material Change unless this is impossible for technical or organizational reasons or Swaarm cannot reasonably be expected to do so. In the latter case, the Customer is entitled to terminate the Contract extraordinarily for good cause within four weeks (the “Exercise Period”). If the Customer does not make use of its termination right, the Material Change shall become an integral component of the Contract. The Exercise Period shall commence as soon as Swaarm has informed the Customer in text form of (i) the non-continuability of the Contract without the Material Change, (ii) the Customer’s extraordinary termination right and (iii) the legal consequences of the expiry of the Exercise Period.
- Maintenance and Support. If the Order Form or Swaarm's associated service description provides for Customer to receive maintenance and/or technical support in connection with the Platform Services, then (unless otherwise set forth in the Order Form or service description): (i) such maintenance will consist of access to new features or performance improvements in the Platform Services if and when Swaarm makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) such technical support will consist of first-level telephone or email assistance in accordance with Swaarm's Service Level Agreement (“SLA”), attached hereto as Exhibit A and incorporated herein by reference.
- Restrictions. You may not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Services or any associated software or materials; (ii) provide any third parties with direct access to the Swaarm API or Platform Services; (iii) provide any third parties other than Partners with access to any of the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the benefit of any third party; (iv) remove any copyright or proprietary notices contained in the Platform Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure or monitoring system provided or used by Swaarm in connection with the Platform Services or Swaarm API; (vi) access the Platform Services via any bot, web crawler or non-human user except to the extent the Swaarm API permits such access; (vii) introduce into the Platform Services any software, virus, worm, "back door," Trojan Horse, or similar harmful code; (viii) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Services or for any other benchmarking or competitive purposes; or (ix) interfere or attempt to interfere in any manner with the proper workings of the Swaarm API or Platform Services, or engage in any activities that adversely affect the functionality or performance of the Swaarm API or Platform Services. All rights in the Platform Services not expressly granted herein are reserved.
- Third Party Integrations. Swaarm offers Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties ("Third Party Integration Providers''). Customer is solely responsible for establishing a contractual relationship with any such Third Party Integration Providers, independently of Swaarm, and complying with the terms of such contractual relationship. Swaarm shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers, including without limitation, by Swaarm's integration with such Third Party Integration Providers and the use of any data or information received from such Third Party Integration Providers. For clarification, Swaarm shall not be responsible for any Third Party Integration Provider; Customer agrees that any claim relating to a Third Party Integration Provider may only be made against the related Third Party Integration Provider.
- Third Party Services. Customer acknowledges that in connection with Platform Services, the Swaarm Platform may facilitate the delivery of services of third parties service providers (“Third Party Service”) (“Third Party Service Provider''), where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Swaarm. Any Third Party Service shall be performed by the corresponding Third Party Service Provider in accordance with the corresponding Third Party Service Provider terms (“Third Party Terms”), to which Customer shall agree in advance, independently of Swaarm; the Third Party Service Provider shall remain directly responsible to Customer for the performance of its Third Party Service. For clarification, Swaarm shall not be responsible for any Third Party Service Provider or Third Party Service; Customer agrees that any claim relating to a Third Party Service Provider or Third Party Service may only be made against the related Service Third Party.
- Third Party Service Provider Fees. Where applicable, and agreed to in writing by the Customer, Third Party Service Provider and Swaarm, the Swaarm Platform may facilitate the invoicing of Customer for its Third Party Service and Customer’s corresponding payments to the subject Third Party Service Provider.
- Responsibilities in Using Platform Services. You are responsible for: (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (ii) all activities that occur with respect to your account, (iii) your use of the Platform Services and compliance with these Terms of Service, and (iv) any Customer-furnished data. Further, you acknowledge and agree that you shall remain liable for all actions and omissions of your Authorized Users and Partners hereunder or under any applicable separate agreement.
- Advertising Obligations. You shall not, and shall cause each of your Partners not to, directly or indirectly, in connection with their business practices or activities, or in connection with any advertisements or properties on which advertisements appear: (i) facilitate or promote illegal, deceptive, or fraudulent activity, or contain content that is illegal; (ii) contain content that is or promotes activities that are, in Swaarm's sole discretion, likely to generate liability for Swaarm or negatively affect Swaarm's reputation; (iii) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; or (iv) use the Platform Services to target advertisements to children under the age of 13 years (16 years in the EU).
- Correction; Suspension. If Customer's use of the Swaarm API or Platform Services, or any advertising or advertising inventory properties are deemed by Swaarm, in its sole discretion, to not meet the letter or spirit of the standards set forth in this Agreement, Swaarm may request that Customer make changes to bring its practices and/or such content and materials into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to Swaarm at law or inequity, Swaarm is authorized to remove the content or materials, and/or suspend any applicable campaign or Customer's access to the Platform Services, without liability to Customer, in its sole discretion. Customer agrees and acknowledges that Swaarm shall have the right to audit, from time to time, Customer's use of the Swaarm API, Platform Services, and the content and material Customer is promoting, distributing and/or displaying on or through the Platform Services or in connection with the use thereof. Swaarm reserves the right to immediately suspend, in whole or in part, Customer's access to the Platform Services and Swaarm's provision of the Platform Services in order to prevent imminent harm to Swaarm or a third party, without liability to Customer, in its sole discretion.
- Personal Data. Any Customer Data consisting of personal information or personal data, as such terms are defined under applicable legislation and regulations, including the EU General Data Protection Regulation 2016/679 or the California Consumer Privacy Act (“Personal Data”, “GDPR”, and “CCPA” respectively), and the processing thereof, shall be governed under the terms and conditions set forth herein and in the Swaarm Data Processing Addendum (“DPA”). A current version of the DPA is available at https://www.swaarm.com/dpa and is incorporated herein by reference. Swaarm shall use commercially reasonable efforts to provide prior notification to the Customer in writing of any material change to the DPA. The DPA is an integral part of these Terms of Service and the agreement between Customer and Swaarm. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any Personal Data, Customer shall be deemed the data controller and Swaarm shall be deemed the data processor or service provider (as such terms are defined under applicable legislation and regulations, including the GDPR and CCPA).
- Treatment of Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Swaarm will retain Customer Data subject to any time or storage limitations set forth in Swaarm documentation for the Platform Services, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Swaarm shall not disclose the Customer Data to any third party except (a) as directed by Customer (including VI. 1. 2. 6. by Customer's selection of an optional third party data integration), (b) if such disclosure is made by Swaarm in response to a court order, subpoena or other legal process, and provided that Swaarm has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Swaarm's service providers in connection with the operation of the Platform Services, or (d) if such disclosure is in aggregate non-personally identifiable form. Swaarm shall use industry standard technology and practices to secure Customer Data.
- Ownership. Swaarm agrees that Customer will own all Customer Data, and that Swaarm receives only the right to access the Customer Data solely in connection with the provision of the Platform Services to Customer. As between Swaarm and Customer, the Platform Services and all software, data and technologies embodied in or used to provide the Platform Services, including any data and information other than Customer Data, and all intellectual property rights in or relating to any of the foregoing, is owned by Swaarm. For clarification, unless otherwise expressly agreed to in writing by the parties, all suggestions, solutions, improvements, customizations, corrections, and other contributions provided by Customer regarding the Platform Services or Swaarm materials provided hereunder shall be owned by Swaarm, and Customer hereby agrees to assign any such rights to Swaarm.
VI. DURATION AND TERMINATION
- Duration and Renewal. Customer’s right to use the Platform Services under these Service Terms shall continue for the term set forth in each Order Form.
- Termination. Unless otherwise set forth in an Order Form, each party shall have the right to terminate an Order Form upon thirty (30) days' notice. The Parties’ statutory right to extraordinary termination remains unaffected. An important reason is present for Swaarm in particular, but not limited to, (i) if the Customer is more than two (2) months in arrears with the payment of due fees or other remuneration, even after the expiry of a reasonable period set by Swaarm to remedy the situation or for the parties (ii) if a material breach by the other party that remains uncured for more than seven (7) days delivery of written notice of the subject breach. Your right to use the Platform Services will automatically terminate upon any termination of these Terms of Service.
- Survival. The following provisions will survive expiration or termination (“Termination”) of these Service Terms: Sections I, II, III, IV, V, VI, VII (to the extent of any outstanding payments), and X through XIV, and such other provisions that by their nature are intended to survive Termination, shall survive Termination of this Agreement.
- Fees. In consideration for Swaarm providing the Platform Services and any agreed-upon professional services, Customer shall pay to Swaarm the corresponding fees set forth in the Order Form.
- Invoices; Payment. Unless otherwise set forth in an Order Form, Swaarm shall invoice the Customer in arrears at the end of each calendar month for the fees accrued during such calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the lesser rate of one percent (1%) per month, or the highest rate of interest allowed by law. For clarification, in case of conflict between these Terms of Service and the Order Form in regards to invoicing and payment terms, the Order Form shall prevail. All payments shall be made in US Dollars, unless otherwise specified in the Order Form. Customer is responsible for Swaarm’s costs and expenses (including attorney fees) to collect past due amounts.
- Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, sales, services, and value-added) (collectively,"Taxes"). Customer shall be responsible for payment of all such Taxes and any related interest and/or penalties resulting from any payments made hereunder, excluding, however, income taxes on profits which may be levied against Swaarm. The Customer shall reimburse Swaarm for the amount of any such taxes or duties paid or accrued directly by Swaarm as a result of this transaction.
- Non-Paying Platform Services Users. The obligations set forth in this Section VII shall not apply to the extent Customer has been provided access to the Platform Services free of charge in furtherance of such Customer’s use of the Platform Services in connection with its relationship with another Swaarm customer.
- Obligations. "Confidential Information" means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Platform Services that should be reasonably understood to be confidential, including without limitation Customer Data. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization of the disclosing party, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising 3. 4. VIII. 1. IX. 2. its rights expressly reserved or granted under these Terms of Service. The receiving party will promptly return or destroy the other party's Confidential Information upon request.
- Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the disclosing party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section VIII. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section VIII on account of making the required disclosure.
IX. SERVICE LEVEL AGREEMENT
If Customer's subscription includes service-level commitments, and the Order Form accordingly specifies that Swaarm’s SLA applies, Customer will be entitled to the commitments and remedies set forth in such SLA as attached hereto and incorporated herein by reference to or referenced in the Order Form. The remedies expressly provided in the SLA are Customer's sole and exclusive remedy, and Swaarm’s entire obligation, with respect to any service-level violation.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SLA, IF APPLICABLE), THE PLATFORM SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. Swaarm DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- By Swaarm. Swaarm will indemnify, defend and hold harmless Customer against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party ("Claims") against Customer to the extent based upon an allegation that the Platform Services, as furnished by Swaarm hereunder and used by Customer within the scope of these Service Terms, infringe any intellectual property rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF Swaarm WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICES. Swaarm shall have no liability under this Section XI to the extent that any claims are based on any combination of the Platform Services with products, services, methods, content or other elements not authorized in writing by Swaarm, or any use of the Platform Services in a manner that violates these Terms of Service or the instructions given to Customer by Swaarm.
- Mitigation Measures. In the event of any Claim or potential Claim covered by Section XII.1, Swaarm may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Services to make them non-infringing, and/or by suspending or terminating Customer's use of the Platform Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Swaarm will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
- Indemnification by Customer. Customer will indemnify, defend and hold harmless Swaarm against any Claims arising from or related to any Customer Data or the use of the Platform Services by Customer, Authorized Users, or Partners in violation of these Terms of Service or any applicable Swaarm documentation or materials, which indemnified Claims include without limitation Claims resulting from advertising practices or the actions or omissions of affiliate network Partners, and any Claims brought by, or in connection with the actions or omissions of, Third Party Integration Providers.
- Procedures. Each party's indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the indemnified party's rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the indemnified party will, at the indemnifier's expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim. Any delay or failure of the indemnified party to provide notice hereunder shall only relieve the indemnifier of its obligations hereunder to the extent, if at all, that it is actually prejudiced by reason of such delay or failure.
- The no-fault based liability pursuant to Section 536a(1) German Civil Code for Defects in the Platform existing at the time of contracting shall be excluded, unless the Defect relates to a feature of the Platform essential for the Contract Purpose.
- Swaarm is liable for damages if arising from (i) willful misconduct or gross negligence of Swaarm or its legal representatives or agents (gesetzliche Vertreter oder Erfüllungsgehilfen), (ii) negligent violation of such contractual duties the fulfilment of which is a prerequisite for proper execution of the Contract or the breach of which endangers attainment of the Contract Purpose and the observance of which the Customer must regularly rely on (so-called Kardinalpflichten) by Swaarm’s or its legal representatives or agents, however, limited to typical damages which are foreseeable at the time of the conclusion of the Contract or (iii) negligence of Swaarm or its legal representatives or agents in a way causing injury to life, body or health, or (iv) any compulsory statutory liability of Swaarm.
- For each case in which a Platform Service is used unauthorisedly under the responsibility of the Customer, the Customer shall pay damages in the amount of the compensation that would have been due for the contractual use under the minimum contract period applicable to this Service. The Customer reserves the right to prove that the Customer is not responsible for the unauthorised use or that there is no damage or considerably less damage. Swaarm remains entitled to claim further damages.
- Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THESE SERVICE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION VII, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THESE SERVICE TERMS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO Swaarm UNDER THESE TERMS OF SERVICE FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
- Exceptions. Nothing in this Section XII shall limit or waive a party's: (i) liability for any breach of its confidentiality obligations under these Terms of Service; (ii) liability for its infringement or misappropriation of any proprietary rights of the other party; or (iii) indemnification obligations under Section XI.
- Notification. The Customer is obliged to immediately notify any damage pursuant to the above liability provisions to Swaarm in text form or to have such damage documented by Swaarm, so that Swaarm is informed as early as possible and can possibly still mitigate the damage together with the Customer.
- Limitation of claims. Claims of the Customer based on the breach of any duty not consisting of a Defect become time-barred, except in the event of intention or gross negligence, within one year from beginning of the limitation period. This shall not apply if the damage in question incurred by the Customer consists in personal injury. Claims for personal injury become statute-barred within the statutory limitation period. Any rescission of contract or reduction of payments shall be invalid if the claim to performance or subsequent performance of the Customer has become time-barred.
XIII. PUBLICITY, INFORMATION
- Identification of Customer. Swaarm may identify Customer, by name and by logo, as a customer of the Platform Services on Swaarm’s website and other marketing materials.
- Case Study. Provided the Customer is satisfied with the Platform Services, Swaarm may develop a case study for public dissemination and marketing use by Swaarm describing the benefits Customer has derived from the Platform Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer's prior written approval, not to be unreasonably withheld.
- Information. We are entitled to send information about our own similar goods and services to the Customer via the e-mail address supplied by the Customer at or upon conclusion of contract (Sec. 7 (3) UWG). The Customer can object to this use of his e-mail address at any time.
- Assignment. Neither party may assign the Agreement without the other party's prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Terms of Service together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (i) to any entity controlling, controlled by, or under common control with, the transferring party, where "control" means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (ii) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Swaarm shall have the right to increase amounts charged to Customer in the event of any transfer by Customer that either increases the cost of providing the Platform Services or by virtue of a change in taxes to be paid reduces the amount received by Swaarm. Any attempt to assign this Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Terms o of Service will bind and inure to the benefit of each party's successors and permitted assigns.
- Set-off, Retention. The Customer shall not have a right of set-off and/or reduction against Swaarm unless its counterclaim has been legally established, undisputed or acknowledged by Swaarm. Additionally, the Customer shall have a right of set-off against Swaarm if it claims complaints or counterclaims from the same contractual relationship. Furthermore, the Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship.
- Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
- Compliance. The parties agree to comply with all applicable international, federal, state and local laws, rules and regulations, including, without limitation, privacy and data security laws, and export laws.
- Severability. If any part of these Service Terms is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of these Service Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
- Waiver. No forbearance or delay by either party in exercising or enforcing the provisions of this Agreement shall prejudice or restrict the rights (whether provided by the Agreement or by law) of that party. The waiver of a breach of any provision of these Terms of Service will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
- Notices. All notices permitted or required under these Terms of Service shall be in writing, will reference these Terms of Service, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
- Governing Law. These Terms of Service and the other contract documents are subject to the law of the Federal Republic of Germany to the exclusion of the German conflict of laws principles and the UN Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising from or in connection with these Terms of Service including their validity, the District Court of Berlin (Landgericht Berlin) shall have exclusive jurisdiction to the extent permitted by law.
- Revisions to Terms of Service and Order Form. Swaarm may change these Terms of Service, the Order Form and its policies from time to time (“Revision”). We will inform you of any such changes by posting the revised version to our website at the same URL as the original version, or by sending notice via email (collectively, “Revision Notice”). Unless otherwise agreed to by the parties or stipulated in the subject Revision Notice or Order Form, your continued use of the Platform Services means that you have agreed to the Revision, subject to the termination rights herein.
- Relationship of the Parties. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, joint venture, fiduciary or employment relationship between the parties. Neither party shall have any authority to incur any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.
- Entire Agreement. These Terms of Service, the SLA, and the Order Form constitute the entire agreement and supersede all prior or contemporaneous oral or written agreements regarding the subject matter herein.
SERVICE LEVEL AGREEMENT
This Swaarm Service Level Agreement ("SLA") supplements the Terms of Service together with the Order Form(s) to which they are attached or incorporated, between Swaarm and Customer that incorporate this SLA by reference (the "Agreement"). All capitalized terms not defined herein shall have the meanings given to them in the Agreement. This SLA terminates or expires upon any termination or expiration of the Agreement.
I. SERVICE AVAILABILITY
- "Downtime" means any period during which all Platform Services cease to function and are therefore unavailable for access by Customer, calculated as a percentage of the total time during a calendar month.
- "Excused Downtime" means any Downtime that: (a) occurs during a Scheduled Maintenance Period; (b) occurs during any suspension of Customer's access to the Platform Services as permitted under the Agreement; (c) occurs during any period in which Customer is in breach of the Agreement (including while any payments by Customer are overdue); or (d) results from the actions or omissions of Customer or third parties acting on Customer's behalf or from any cause beyond Swaarm’s reasonable control.
- "Scheduled Maintenance Period" means any pre-scheduled time period during which Swaarm performs maintenance on the Platform Services. The regularly scheduled time for maintenance is presently 5 p.m. to 10 p.m. CET, and may be used by Swaarm without advance notification. Swaarm may expand these scheduled times upon one (1) day's advance notice. Swaarm may change the regularly scheduled time for maintenance by amending this SLA upon ten (10) business days' written notice delivered either by email or through a notice on the Platform Services.
- "Target Downtime" means Downtime, excluding Excused Downtime, of 0.5% of the total time in any calendar month.
- In the event that Swaarm in its sole discretion determines that any unscheduled maintenance is necessary, Swaarm will use commercially reasonable efforts to notify Customer.
- For any calendar month in which the Downtime for the Platform Services exceeds the Target Downtime, Swaarm will, if and only if Customer delivers a written credit request within thirty (30) days of the end of the relevant calendar month, issue Customer a service credit calculated as a percentage of the fees due from Customer for such calendar month equal to two (2) times the difference between the Target Downtime and the Downtime percentage. The maximum service credit for any calendar month under this SLA shall not exceed the fees payable for such calendar month.
- This SLA describes your sole remedy, and our entire obligation, if we exceed the Target Downtime. This SLA does not diminish or override the disclaimer of warranties in the Agreement to which this SLA is attached (except as expressly stated therein). No party other than Customer receives any rights under this SLA.
II. TECHNICAL SUPPORT
We will provide commercially reasonable telephone, and/or email assistance for general advice and technical support, as well as technical assistance and remediation for operational issues, consistent with the level of support that Swaarm generally offers at no additional charge to users of the Platform Services.
All domain additions or changes, as defined in the Order Form, will be performed by Swaarm within forty-eight (48) business hours. This term applies solely to domains registered and managed by Swaarm. For clarification, service issues related to domains managed by Customer are not subject to this SLA.