1. DESCRIPTION OF SERVICES. Swift will provide an ongoing set of online services including website design, copy and editorial development, search engine optimization and website updates.
2. LIMITATIONS OF SCOPE. Swift will not be responsible for work that is beyond the scope of services set forth in the subscription plan in effect at the time Client initiates the service. Any changes to the scope of services will not be effective unless approved by both parties.
3. MANAGEMENT RESPONSIBILITY. Swift will provide certain tools, methods and resources to Client that are intended to help Client grow and build its business. However, Client is fully and exclusively responsible for its own business performance and Client satisfaction. In addition, Client has full and exclusive responsibility for understanding and ensuring compliance with any regulatory, legal or contractual obligations related to Client’s business, including without limitation, data held by Client and its Clients, information provided by Client to Clients and/or other third parties and any safeguarding and security measures that may be required. Swift may participate in implementing needed systems services and functions, but Client is solely responsible for the final outcomes, actions taken and results produced.
4. COPYRIGHT. All content produced by Swift within the scope of Services including software and web code, contents, graphics and design, or material developed or licensed by Swift for Client as part of the Services is copyrighted by Swift and remains the exclusive property of Swift. Upon termination of this Agreement copyrights shall remain with Swift. After 30 months of service and full payment if Client chooses to cancel this agreement per the conditions in Section 6 below all Swift copyrighted content, EXCEPT software, web code, WordPress themes and plug-ins, PSD files and other files or code used to create the Client website and newsletter can be used indefinitely by Client for their company website, newsletter and other marketing collateral. This use will be restricted to the Client company use only and Client does not have any rights to resell, license or otherwise allow 3rd parties use of the content.
In the event Swift ceases business operations and providing the services described in this agreement all Swift copyrighted content, EXCEPT software, web code, WordPress themes and plug-ins, PSD files and other files or code used to create the Client website and newsletter can be used indefinitely by Client for their company website, newsletter and other marketing collateral. This use will be restricted to the Client company use only and Client does not have any rights to resell, license or otherwise allow 3rd parties use of the content.
5. LINK. Customer hereby acknowledges and agrees that Swift shall have the right to use the name of Client, including the Client Web Site, for reference as a customer of Swift services for referral and marketing purposes.
6. TERM/TERMINATION. Except for reasons of non-performance by either party, this Agreement shall remain in effect until formally terminated in writing by either party. Swift will start subscription billing to Client beginning the date (“Renewal Date”) client agrees to these terms of services and it shall automatically renew for subsequent one (1) month periods until it is formally terminated in writing or email. Termination of this Agreement requires written or email notice delivered thirty (30) days prior to the desired date of termination. A repeated failure to make payment by date due during any period gives Swift the option for immediate termination. Upon the expiration or termination of this Agreement for non-payment or non-performance by client, (i) all licenses granted by Swift to Client hereunder shall automatically terminate and Client shall immediately cease its use of the licensed content and other provided marketing collateral, and (ii) Client’s right to the Services afforded to Swift’s Clients shall automatically terminate.
7. PAYMENT FOR SERVICES. The client will pay monthly fees to Swift for a subscription to Services as described in Swift plan in effect at the time of this agreement and for the license to use the Swift web services, software and licensed content in conjunction with these services. Payment will be made by automatic credit card transactions. Invoices will include monthly subscription fees and any additional fees for elective or other additional Services that have been purchased by the Client. Invoices will be issued and automatic transactions processed on the Renewal Date as described in Section 6 above. Swift reserves the right to assess and collect late-payment charges of 1.5% per month on past due balances.
8. WARRANTY. Swift shall provide its services and meet its obligations under this Agreement in a timely and professional manner, using knowledge and skills consistent with generally acceptable standards in Swift’s industry, and will provide a standard of care based on commercially reasonable efforts. The services and all products provided as part of the services are provided “as is” and Swift disclaims, and client waives, any warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, title, non-infringement or any other warranty, condition, guaranty or representation related to the services. Swift does not warrant that the software or any products or services provided hereunder will be uninterrupted or error-free. Under no circumstances, including negligence, shall the Company be liable for any direct, incidental, special or consequential damages or otherwise, including any damages that result from the use of or inability to use the Website. The Company shall not be responsible for any damages whatsoever that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
9. LIMITATIONS OF LIABILITY. Except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of Swift, Swift’s liability to pay damages for any losses incurred by client as a result of breach of contract, negligence or other tort committed by Swift, regardless of the theory of liability asserted, is limited to no more than the total amount of the most recent three (3) months of base fees paid under this agreement. In any case, Swift and its licensors will not be liable for lost profits or any consequential, indirect, punitive, exemplary or special damages. In addition, Swift shall have no liability to client arising from or relating to any third party hardware, software, information or materials. Swift is also not liable for direct or indirect damages created by viruses, hackers or other malicious or accidental destruction of systems or data, though Swift will attempt to prevent or minimize exposure to such risks.
10. INDEMNIFICATION. Subject to the provisions hereof, Client shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against Swift and its licensors arising from products or services related to this Agreement. Conversely, Swift shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against Client arising from the gross negligence or intentional misconduct of Swift.
12. GOVERNING LAW. You agree that these Terms and Conditions shall be treated as though they were executed and performed in Texas and shall be governed by and construed in accordance with the laws of Texas (without regard to conflict of law principles). All legal proceedings arising out of or in connection with these Terms and Conditions or any other agreement related to the use of Swift services shall be brought solely in Texas.