This Agency Partner Program Agreement (this “Agreement”) is made as of (“Execution/sign up Date”) by and between Swym Corporation, a Delaware corporation (“Swym” or “we”), and Partner (“Partner” or “you”).
WHEREAS, Swym is the owner of the Swym Platform and Swym Applications (as defined below);
WHEREAS, Partner would like to resell and/or incorporate the Swym Platform and/or the Swym Applications in Client Applications (as defined below); and
WHEREAS, Swym would like to provide incentive for Partner to resell and/or incorporate Swym Platform and/or the Swym Applications in Client Applications.
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth below, Swym and Partner agree as follows:
1. Definitions.
(a) “Agency Partner Program” means the partner program as described in this Agreement.
(b) “Bounty” means an one-time payment based on Client sign-ups for the Swym Platform based on the applicable Bounty Amount.
(c) “Bounty Amount” means (1) $50 for a Starter Plan, (2) $100 for a Pro Plan, and (3) $1,000 for an Enterprise Plan.
(d) “Client” means a client of Partner and owner of the Client Application which incorporates the Swym Platform or the party (such as a brand) on whose behalf incorporates the Swym Platform.
(e) “Client Application” means an application owned by a Client that its end users can install on their personal device (e.g., through an app store or via download) or an e-commerce website owned by a Client.
(f) “Client Data” means all information that Client, or you acting on Client’s behalf, submits or collects via the Swym Platform and all materials that Client, or you acting on Client’s behalf, provides or posts, uploads, inputs or submits through the Swym Platform, if any.
(g) “Effective Date” means the date after the Execution Date where the Partner has created the Mantle Account and accepted any and all applicable terms of the Agency Partner Program.
(h) “Mantle Account” means the account created by Partner on the Mantle platform.
(i) “Other Products” means those products and services that we offer, which are not included in the Swym Platform (as detailed below); and, for the purposes of this Agreement, Other Products include any sales products, implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
(j) “Partner Transactions” means those transactions that are eligible for a Bounty pursuant to Section 3 of this Agreement.
(k) “Program Policies” means the policies applicable to partners which we have published, if any, at https://www.getswym.com/agency-program.
(l) “Swym Applications” means, collectively, the applications provided by Swym including Wishlist Plus, In Stock Alerts, and any future applications Swym may choose to provide and authorize for this Agreement, in its sole discretion.
(m) “Swym Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our products and services, including the Swym Platform.
(n) “Swym License” means those terms and conditions located at https://www.getswym.com/terms-policies/terms-of-service, as modified from time to time.
(o) “Swym Platform” means, collectively, (i) the Swym Applications, (ii) the platform provided by Swym for its products and services, and (iii) the APIs provided by Swym.
2. Non-Exclusivity; Prohibited Activities; Mantle Account.
(a) Non-Exclusivity. This Agreement does not create an exclusive agreement between Partner and Swym. Both Partner and Swym will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
(b) Prohibited Activities. Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Swym; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Swym and including the development of the Client Application; (iii) make any false, misleading or disparaging representations or statements with respect to Swym; (iv) copy, resemble or mirror the look and feel of Swym, Swym Content, or trademarks of Swym or otherwise misrepresent Partner’s affiliation with Swym; (v) include code in any Client Application which performs any operations not related to the services provided by the Client Application, whether or not Partner has obtained Client consent to do so, and whether or not the Client Application obtains consent from the end user to do so (for the avoidance of doubt, this prohibited activity includes embedding or incorporating code into any Client Application which utilizes the resources (including CPU resources) of another computer, including for the purposes of cryptocurrency mining), (vi) develop or distribute the Client Application in any way in furtherance of criminal, fraudulent, or other unlawful activity, or (vii) engage in any other practices which may adversely affect the credibility or reputation of Swym, including but not limited to, sending email communications or using any website in any manner, or having any content on any website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Swym or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party.
(c) Mantle Account. Partner must sign up for Mantle Account which Swym uses to manage partners in the Agency Partner Program. You will be sent a sign-up link for the Mantle Account and create separate account, which may also contain further agreement to the terms of the Agency Partner Program
3. Partner Transactions.
(a) Partner Rights and Obligations.
(1) Upon the Effective Date, we grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the Swym Platform to your Clients, and (ii) to provide Clients access to use the Swym Platform in accordance with this Agreement and the Swym License, provided that Clients agree to the Swym License. At our discretion, we will provide limited sales support to you, such as occasional participation on a call with you and a Client. Partner shall bear all costs and expenses related to Partner’s marketing or promotion of the Swym Platform. Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.
(2) The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Agency Partner Program with Swym, Partner receives compensation for Client referrals made to Swym. This may establish a “material connection” according to FTC rules, which creates an obligation for Partner to provide disclosure to consumers. Full compliance with these guidelines requires that information be provided by Partner to consumers clearly and conspicuously, outlining that Partner is being compensated for referring Clients to Swym. For further information Partner may refer to statements released by the FTC regarding these guidelines.
(b) Compliance with Program Policies. You will comply with the terms and conditions of this Agreement at all times, including the Program Policies, which are incorporated herein by reference. If you use the Swym Platform, developer tools, or associated software, you will comply with the terms of the Swym License, which are incorporated herein by reference.
(c) Agency Partner Program Qualification and Tracking. Once you sign up for the Agency Partner Program, we will send you an affiliate ID. We will send you a custom link for each Swym Application to download tracked to your affiliate ID. Alternatively, we may generate an API Key for such client tracked to your affiliate ID. Each such link or key will expire six (6) months from the date the link or API Key was generated. If you are actively pursuing a Client and the link or API Key is expired, then you may re-apply for another link or API Key. A link or API Key may be considered expired prior to the conclusion of any six (6) month period if you and we mutually agree to the early expiration of the accepted registration – or we in our reasonable determination believe you do not have a working relationship with such applicable Client. In lieu of the foregoing, we may use the Mantle Account. Note that Bounty will only accrue for the exact services you pitch to Client and are tracked by us, and that any additional products, services, including upgrades thereto, purchased by a Client will not be eligible for Bounty.
(d) Eligibility. To be eligible for a Bounty the Effective Date must have occurred, in addition to Section 3(c), a Client must be registered, accepted and valid in accordance with Section 3(e) or Section 3(g). Furthermore, the right to a Bounty for any individual Client will only accrue when the Client has paid for at least ninety (90) days of their applicable subscription; provided that future changes of subscriptions shall not increase the Bounty. You are not eligible to receive a Bounty or any other compensation from Swym based on transactions for Other Products, based on transactions with a Swym Lead (as defined in Section 3(f) below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Client objects to or prohibits such compensation or excludes such compensation from its payments to Swym or our affiliates; (iii) the Client has paid or will pay such commissions, referral fees, or other compensation directly to you; or (iv) the Client participates in the Agency Partner Program (including you or any of your affiliates). In our sole discretion, we might also determine that you are not eligible for a Bounty if (i) you are no longer actively engaged with the Client but the Client has engaged with a new “Partner” due to your breach of the commercial agreement between you and Client or (ii) if a Client believes they erroneously used a link, API Key or affiliate ID. If we request, you will provide validation that the Client is engaged with you (for example, by providing a copy of your applicable commercial agreement with the Client if we so request). We may discontinue Bounty payment should any of the eligibility criteria set forth in this subsection fail to be met at any time.
(e) Submission, Acceptance and Validity. You must register each Client with Swym using the tools we provide through our portal (or through a website or third-party service as we may designate) prior to the close of a Partner Transaction. To register a Client, you must provide at least the following information about each Client: contact first name, contact last name, email, telephone number, URL and company name. We generally will accept a Client who, in our reasonable determination: (i) is a new potential customer of ours, and (ii) is not, at the time of submission or twelve (12) months prior, one of our pre-existing customers, involved in our active sales process, or your affiliate. Notwithstanding the foregoing, we may choose not to accept a Client in our reasonable discretion. If a Client does not purchase a license to the Swym Platform before its registration expires, you will need to complete the registration process again in order to re-qualify for a Bounty for that Client. We will, at our discretion, accept an order and provision the Swym Platform for the Client. A Client is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, or (iv) after this Agreement is expired or terminated.
(f) Swym Leads. We may choose to introduce you to, or send you information on, a prospect of ours when we identify that such prospect may have a need for the services you offer (each, a “Swym Lead”). We can do the same for other partners of ours, even if it is for the same Swym Lead. You may use the information about the Swym Lead provided only to market and sell your services to them and not for any other purpose (unless the Swym Lead otherwise consents). Immediately upon our or the Swym Lead’s request, you will promptly discontinue all use of and delete the Swym Lead’s information. Swym Leads are considered our Confidential Information and shall be treated in accordance with Section 8 below.
(g) Shared Leads. If we decide to participate in the same sales process as you and this results in the sale of the Swym Platform to a prospect that would have otherwise not been valid based on it (i) not being registered, (ii) not being accepted, or (iii) being expired (each, a “Shared Lead”) and you have an Active Engagement (defined below) with such Shared Lead, then we may consider that Shared Lead a registered, accepted and valid prospect for the purposes of eligibility in Section 3(d) above. An “Active Engagement” means that you have a fully executed written agreement with the Shared Lead under which you are retained to provide services that (i) is either prior the time at which the sale of the license of the Swym Platform is closed, or is signed contemporaneously with the close of the sale of the license of the Swym Platform, and (ii) extends at least ninety (90) days beyond the close of the sale of the license of Swym Platform.
(h) Engagement with Prospects.
(1) If a prospect is not a Swym Lead or a Shared Lead but is otherwise valid, we will not engage with that prospect (for so long as they are a prospect and have not been converted to a customer of Swym) except: (i) to complete the subscription process, (ii) to fulfill or enforce our obligations under an agreement with such prospect, (iii) to provide support, (iv) to conduct our standard marketing and sales activities with prospects that have provided their information to Swym, for example, by converting on a landing page of ours or by otherwise subscribing to or requesting any of our marketing materials or a product demonstration, or (v) as otherwise permitted by this Agreement. When we do engage, we may choose how and whether to engage with each prospect. Upon our request, you will provide Swym with the name and contact information of the Client, and facilitate an introduction. If we request, you will facilitate our participation on calls with you and various Client(s). We may request to participate on these calls in an effort to help to ensure the quality of the Client Application and the Swym Platform and for the purposes of managing the Agency Partner Program.
(2) In a resulting transaction, the Client will contract directly with Swym for provision of the Swym Platform. We may sell the Swym Platform to Clients at a price determined solely by us. We will require each Client to agree to the Swym License.
(3) You will take all reasonable steps to ensure that Clients do not use the Swym Platform in violation of the Swym License. If you discover or have reason to believe that any Client is making use of the Swym Platform in violation of the Swym License, then you will immediately notify Swym in writing.
4. Bounty and Payment.
(a) Requirements for Payment; Forfeiture. In order to receive payment under this Agreement, the Effective Date must have occurred, and you must have: (i) agreed to the terms of this Agreement; (ii) completed all information in our account information form; (iii) submitted to Swym the necessary tax documents (i.e., a completed Form W-9 for U.S.-based Partners, or Form W-8BEN or W-8BEN-E for non-U.S. based Partners); and (iv) returned the forms required by (ii) and (iii) above by email to partners@swymcorp.com. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in Section 4(a)(i)-(iv) remain outstanding for six (6) months immediately following the close of a Partner Transaction, then your right to receive Bounty arising from any and all Partner Transactions with the associated Client will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Bounty associated with a Forfeited Transaction. Once you comply with all of the requirements in Section 4(a)(i)-(iv), then you will be eligible to receive Bounty on Partner Transactions, as long as these Partner Transactions do not involve the same Client associated with a Forfeited Transaction.
(b) Bounty Payment. After the Effective Date, we, or one of our affiliates, will pay the Bounty amount due to you for a Client via Mantle, within (90) days after each calendar quarter for the applicable Partner Transaction which qualifies for a Bounty. We will determine the currency in which we pay the Bounty, as well as the applicable conversion rate, if applicable. The currency in which the Bounty is paid in may be different from the currency that applies to the Partner Transaction. We will not pay more than one Bounty or other similar referral fee on any given partner sale (unless we choose to in our discretion). For the avoidance of doubt, Partner may use its Bounty to offer a discount to Client but such discount shall in no way reduce the amount Client pays to Swym; provided that Partner must disclose to Swym how much of the Bounty it is offering to Client. Swym may offer discounts to Clients in its sole discretion.
(c) Taxes. You are responsible for payment of all taxes applicable to the Bounty. All amounts payable by Swym to you are subject to offset by Swym against any amounts owed by you to Swym.
5. Training and Support.
(a) Partner Training and Support. We may make available to you, without charge, the webinars and other resources at the Swym website. We may change or discontinue any or all Agency Partner Program benefits or offerings at any time without notice.
(b) Client Training and Support. We may provide user training purchased by a Client as set forth in a mutually agreed upon order or agreement. We may choose to communicate directly with any Client about use of the Swym Platform and any support issues experienced.
6. Trademarks. You grant to Swym a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Partner Marks”) in connection with the Agency Partner Program and this Agreement. During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Agency Partner Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
7. Proprietary Rights.
(a) Swym’s Proprietary Rights. No license to any software is granted by this Agreement. The Swym Platform is protected by intellectual property laws. The Swym Platform belong to and are the property of Swym or our licensors (if any). We retain all ownership rights in the Swym Platform. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Swym Content, or the Swym Platform in whole or in part, by any means, except as expressly authorized in writing by Swym. Swym, the Swym logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement. We encourage all customers and partners to comment on the Swym Platform, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Swym Platform, without payment to you or Client.
(b) Client’s Proprietary Rights. Client will own and retain all rights to the Client Data.
8. Confidentiality. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential or a reasonable person would understand as confidential, and (ii) Swym customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
9. Opt Out and Unsubscribing.
You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests, including without limitation such requests from Swym related to Swym Leads and Shared Leads. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
10. Term and Termination.
(a) Term. This Agreement will commence on the Effective Date and apply for as long as you participate in the Agency Partner Program, until terminated.
(b) Termination Without Cause. Both you and Swym may terminate this Agreement on sixty (60) days written notice to the other party.
(c) Termination for Cause. We may terminate this Agreement and/or suspend your or the Client’s access to the Swym Platform: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iii) immediately, if the Client violates the Swym License or applicable local, state, federal, or foreign laws or regulations, (iv) immediately, if you breach the terms applicable to your subscription with Swym (if you have one), or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect Swym, our prospects, or our customers.
(d) Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement without cause by Swym or by you with cause, shall not affect our obligation to pay you a Bounty. We will pay you fees on Client payments recognized and received by Swym after the date of such termination or expiration; provided, however, in the event of termination without cause by you, or for cause by Swym, our obligation to pay and your right to receive any Bounty will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Bounty prior to the date of termination. Upon termination or expiration, you will discontinue all use of and delete all Swym Leads and Shared Leads if we provided them to you and you do not otherwise have consent from the applicable Swym Lead or Shared Lead to continue use of their data and information. Upon termination or expiration, a prospect is not considered valid, and we may choose to maintain it in our database and engage with such a prospect. Upon termination or expiration, you will immediately discontinue all use of our trademarks, and will remove all Swym references from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your or an Client’s separate license agreement to be terminated.
11. Partner Representations and Warranties. You represent and warrant that: (i) you have all sufficient rights and permissions to provide the Client and prospect data to Swym for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Agency Partner Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to Swym our right to use the Partner Marks.
12. Indemnification. You will indemnify, defend and hold Swym harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Swym (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Swym to the extent that such Action is based upon or arises out of (a) your participation in the Agency Partner Program, (b) our use of the Client or prospect data you provided Swym, (c) your noncompliance with or breach of this Agreement, or (d) our use of the Partner Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such Action; give you sole control of the defense or settlement of such Action; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the Action. You shall not accept any settlement that (i) imposes an obligation on Swym; (ii) requires Swym to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Swym without our prior written consent.
13. Disclaimers; Limitations of Liability.
(a) Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SWYM PLATFORM, SWYM CONTENT, OR THE AGENCY PARTNER PROGRAM FOR ANY PURPOSE. THE SWYM PLATFORM MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW THE SWYM PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SWYM PLATFORM INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(b) No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
(c) Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL BOUNTY AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED PARTNER TRANSACTION IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
14. Non-Solicitation. You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of our employees or contractors.
15. General.
(a) Amendment; No Waiver. Any provision of this Agreement may be amended, waived or modified only upon the written consent of Swym and Partner. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
(b) Applicable Law. This Agreement shall be governed by the laws of the State of Texas, without regard to the conflict of law provisions thereof. In the event either of the parties initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Dallas, Texas.
(c) Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
(d) Actions Permitted. Except for actions for confidentiality or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
(e) Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and Swym as a result of this Agreement.
(f) Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Swym, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Swym Platform. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Swym Platform to prohibited countries or individuals or permit use of the Swym Platform by prohibited countries or individuals.
(g) Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
(h) Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and mailed or delivered to each party at such party’s address or email address set forth on the signature page to this Agreement, or at such other address or email address as a party may have furnished to the other party in writing. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being delivered by electronic mail (with receipt of appropriate confirmation), (iv) one business day after being deposited with an overnight courier service of recognized standing or (v) four days after being deposited in the U.S. mail, first class with postage prepaid.
(i) Entire Agreement. This Agreement is the entire agreement between Swym for Agency Partner Program and supersedes all other proposals and agreements, whether electronic, oral or written, between Swym. Our obligations are not contingent on the delivery of any future functionality or features of the Swym Platform or dependent on any oral or written public comments made by Swym regarding future functionality or features of the Swym Platform. It is the express wish of both you and Swym that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
(j) Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
(k) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(l) Program Policies. We may change the Program Policies from time to time by updating our website. Your participation in the Agency Partner Program is subject to the Program Policies, which are incorporated herein by reference.
(m) No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to Swym, the Swym Platform, our trademarks, or any other property or right of ours.
(n) Sales by Swym. This Agreement shall in no way limit our right to sell the Swym Platform, directly or indirectly, to any current or prospective customers.
(o) Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
(p) Survival. The following sections shall survive the expiration or termination of this Agreement: Section 3, Section 7, Section 8, Section 10(d), Section 12, Section 13, Section 14, and Section 15.
(q) Injunctive Relief. Each party acknowledges that the unauthorized use, transfer or disclosure of Confidential Information may (a) substantially diminish the value to Disclosing Party of the trade secrets and other proprietary interests that are the subject of this Agreement; (b) render Disclosing Party’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If the Receiving Party breaches any of its obligations with respect to the use or confidentiality of the Confidential Information, in addition to any remedies it may have at law, the Disclosing Party will be entitled to seek equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
(r) Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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