These Terms of Service (these “Terms of Service”) constitute a contract between Swoop In Technologies, Inc. with offices at 5600 Wyoming Blvd NE, Ste. 270, Albuquerque, NM 87109123 (“Swoop”), and you. By accepting these Terms of Service or otherwise using the Service (as defined below), you agree to be bound by the terms and conditions in these Terms of Service. If you are entering into these Terms of Service as an individual, the term “you” refers to you in your individual capacity. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “you” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept these Terms of Service and may not use the Service. You accept all responsibility for any User to whom you permit to access your account and/or use the Service for which you have contracted.
These Terms of Service shall apply to your use of the authentication, including Two-Factor Authentication, services (the “Service”) provided by Swoop In Technologies LLC (“Swoop”). These Terms of Service represent the parties’ entire understanding regarding the Service and shall control over any different or additional terms of any purchase order or other non-Swoop ordering document.
- Modification to these Terms of Service
Swoop reserves the right to update and change these Terms of Service from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to these Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of these Terms of Service at any time at www.swoopnow.com/termsofservice.
3.1 “Applicable Law” means the Data Protection Laws and any other applicable laws, rules and regulations.
3.2 “Data Protection Laws” means all data protection and privacy laws, rules and regulations applicable to a party and binding on that party in the performance of its obligations under this Agreement, including, where applicable, EC Directive 2002/58/EC and Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).
3.3 “Intellectual Property Rights” means all patents, registered designs, unregistered designs, design rights, utility models, semiconductor topography rights, database rights, copyright and other similar statutory rights, trade mark, service mark and any know how relating to algorithms, drawings, tests, reports and procedures, models, manuals, formulae, methods, processes and the like (including applications for any of the preceding rights) or any other intellectual or industrial property rights of whatever nature in each case in any part of the world and whether or not registered or registerable, for the full period and all extensions and renewals where applicable.
3.4 “Performance Data” means any and all aggregate, de-identified data relating to the access or use of the Service by or on behalf of you or any User, including any performance, analytics or statistical data, that Swoop may collect from time to time.
3.5 “Personal Data” means any of Your Data that is personal data (as defined under the applicable Data Protection Laws).
3.6 “User” means any user of the Service whom you may authorize to use the Service under the terms of this agreement.
3.7 “Your Data” means any information or data about you or Users (and your and their staff, customers or suppliers, as applicable) that is supplied to Swoop by or on behalf of you or any User in connection with the Service, or which Swoop is required to access, generate, process, store or transmit pursuant to these Terms of Service, including (without limitation) information about your and your Users’ respective devices, computers and use of the Service. Your Data shall not be deemed to include any Performance Data.
- Access to Service
Subject to the terms and conditions of these Terms of Service, for so long as you have an active account for the Service, Swoop hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service. The Service is provided for commercial use only, not for private use. You and any User is responsible for maintaining the security of equipment, your Swoop account and any email account used to access the Service. You will use reasonable efforts to prevent any unauthorized use of the Service and will immediately notify Swoop in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will be responsible and liable for all activity conducted through your users’ accounts. You will cooperate and assist with any actions taken by Swoop to prevent or terminate unauthorized use of the Service.
A valid credit card is required for paying accounts. You agree to (a) keep your credit card information updated and (b) authorize charging your credit card the fees for the Service when due. The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an active account. All fees are exclusive of all taxes, levies or duties imposed by taxing authorities and you shall be responsible for payment of all such taxes, levies or duties assessed on your use of the Service, exclusive of taxes on Swoop’s income. Unless otherwise expressly indicated, all fees and expenses shall be in U.S. dollars. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees, except to the extent Applicable Law requires a different interest or finance charge calculation for unpaid and due fees and expenses. Downgrading your account may cause loss of content, features or capacity. Swoop shall have no liability for any such loss.
- Modifications to the Service and Prices
Swoop reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by posting the changes to the Swoop website (www.swoopnow.com) or the Service itself. Swoop shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
- Use of Service; Your Responsibilities
7.1 When you create an account with Swoop, you must provide Swoop information that is accurate, complete, and current at all times. Failure to do so will constitute a breach of these Terms of Service, which may result in immediate termination of your account and your access to the Service.
7.2 You may only use the Service in accordance with any documentation provided or made available by Swoop in connection with the Services and as explicitly set forth in this Agreement. You will cooperate with Swoop in connection with the performance of these Terms of Service as may be reasonably necessary, which may include making available such personnel and information as may be reasonably required to provide the Service or support. You are solely responsible for determining whether the Service is sufficient for its purposes, including but not limited to, whether the Service satisfies your legal and/or regulatory requirements.
7.3 You shall not provide any infringing, offensive, fraudulent or illegal content in connection with the use of the Service, and you represent and warrant that any content that you provide will not violate any Intellectual Property Rights (as defined hereinbelow) of any third party. Swoop reserves the right, in its sole discretion, to delete or disable any content submitted by you that may be infringing, offensive, fraudulent or illegal.
7.4 Use of the Services may require that you install certain software on applicable devices, which use shall be subject to these Terms of Service. Your use of third party products or services that are not licensed to you directly by Swoop (“Third Party Services”) shall be governed solely by the terms and conditions applicable to such Third Party Services, as agreed to between you and the third party. Swoop does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Services, including without limitation, the privacy practices, data security processes or other policies related to Third Party Services. You agree to waive any claim against Swoop with respect to any Third Party Services.
7.5 You acknowledge that the Service will require you to share with Swoop certain information which may include personal information regarding you (such as usernames, Service access passwords, email address and/or phone number) solely for the purposes of providing and improving the Service. Prior to authorizing any individual to become a user of the Service, you are fully responsible for obtaining the consent of that individual, in accordance with Applicable Law, to the use of his/her information by Swoop, which use is described in Swoop’s Services Privacy Notice, located at http://swoopnow.com/privacy-policy/. You represent and warrant that all such consents have been or will be obtained prior to authorizing any individual to become a User of the Service.
7.6 You will be fully responsible for all Users’ compliance with this Agreement and any breach of this Agreement by a User shall be deemed to be a breach by you. Swoop’s relationship is with you and not individual Users or third parties using the Service through you, and you will address all claims raised by your Users, and third parties using the Service through you, directly with Swoop. You must ensure that all third parties that utilize the Service through you agree (a) to use the Services in full compliance with these Terms of Service, and (b) to the extent permitted by Applicable Law, to waive any and all claims directly against Swoop related to the Service.
7.7 Notwithstanding the foregoing, You will not, and will not permit or authorize third parties to, (a) breach, circumvent, tamper with or disable any security or other technological features or measures of the Service; (b) attempt to probe, scan or test the vulnerability of any systems related to the Service, including penetration or load tests; (c) attempt to discover the underlying structure, technology or algorithms of the Service; or (d) share, rent, lease, loan, resell, sublicense, distribute, use or otherwise transfer the Service or any related software for timesharing or service bureau purposes or for any purpose other than your own use, except as expressly provided in an applicable subscription; or use the Service or related software other than in accordance with these Terms of Service and in compliance with Applicable Law. The Service and any related software may be subject to applicable export control laws and regulations. You agree to comply strictly with all such laws and regulations as they relate to the Service and such software, and, to the extent consistent with these Terms of Service, to obtain any necessary license or other authorization to export, re-export, or transfer the Service or such software when required. You agree to use the Service in compliance with all other applicable laws and to indemnify and hold Swoop and its affiliates and their officers, employees, directors and agents harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims and actions of any kind arising out of or relating to your use of the Service or your violation of these Terms of Service.
7.8 You will not have any rights to the Service except as expressly granted in these Terms of Service. Swoop reserves to itself all rights to the Service not expressly granted to you in accordance with these Terms of Service.
7.9 Swoop reserves the right to suspend your access to the Service immediately (a) in the event that you breach these Terms of Service and fail to correct that breach within the applicable cure period; or (b) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect customers or users.
The term “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in any form (written, oral, etc.) that is marked as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, including, without limitation: trade secrets; technology and technical information (intellectual property, inventions, know-how ideas and methods); business, financial and customer information (including customer data and customer personal data); pricing, forecasts, strategies and product development plans; and/or the terms of this Agreement. Each party understands that the Disclosing Party has or may disclose Confidential Information in connection with this Agreement, but that Receiving Party shall receive no rights in, or licenses to, such Confidential Information.
8.1 The Receiving Party agrees: (i) not to disclose Confidential Information to any third person other than those of its employees, contractors, advisors, investors and potential acquirers (“Representatives”) with a need to have access thereto and who have entered into non-disclosure and non-use agreements applicable to the Disclosing Party’s Confidential Information, and (ii) to use such Confidential Information solely as reasonably required in connection with the Services and/or this Agreement. Each party agrees to be responsible for any breach of this Agreement caused by any of its Representatives. The Receiving Party further agrees to take the same security precautions to protect against unauthorized disclosure or unauthorized use of such Confidential Information of the Disclosing Party that the party takes with its own confidential or proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. Each party acknowledges that the use of such precautions is not a guarantee against unauthorized disclosure or use. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information as required in response to a request under applicable open records laws or pursuant to any judicial or governmental order, provided that, to the extent permitted by law, the Receiving Party gives the Disclosing Party reasonable prior notice to contest such disclosure. The parties agree that any and all aggregate, de-identified data relating to the access or use of the Services by or on behalf of you or your customers, including any performance, analytics or statistical data, that Swoop may collect from time to time (“Performance Data”) is not Confidential Information and will not be subject to any confidentiality restrictions or obligations. Each party agrees that, upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party, or provide written certification of the destruction of, all Confidential Information of the Disclosing Party, including all Confidential Information contained in internal documents, without retaining any copy, extract or summary of any part thereof. Notwithstanding the foregoing, a Receiving Party may retain copies of Confidential Information solely to the extent necessary for purposes of such party’s ordinary course internal document retention and backup requirements and procedures, provided that such Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained.
8.2 You acknowledge that Swoop does not wish to receive any Confidential Information from you that is not necessary for Swoop to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Swoop may reasonably presume that any unrelated information received from you is not confidential or Confidential Information, unless such information is marked as “Confidential.
- Intellectual Property Rights; Ownership
Except as expressly set forth herein, Swoop alone (and its licensors, where applicable) will retain all Intellectual Property Rights (as defined below) relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by your or any third party relating to the Service and/or any related software, which are hereby assigned to Swoop. You will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under these Terms of Service. As between the parties, Swoop owns all Performance Data. These Terms of Service do not constitute a sale and do not convey to you any rights of ownership in or related to the Service or any Intellectual Property Rights.
10 Data Protection
10.1 In this Section 10, the terms “personal data,” “data processor,” “data subject,” “process and processing” and “data controller” shall be as defined in the applicable Data Protection Laws. For the purposes of the Data Protection Laws, as between you and Swoop, the parties agree that you shall at all times be the data controller and Swoop shall be the data processor with respect to the processing of your Personal Data in connection with your use of the Services. Solely if and to the extent Swoop is processing Personal Data, as defined in the General Data Protection Regulation, that is contained in Your Data on your behalf, then the terms of the data processing agreement available at http://swoopnow.com/data-processing-agreement/ shall apply to such processing and are incorporated into this Agreement.
10.2 You may enable integrations between the Service and certain of your Third Party Services (each, an “Integration”). By enabling an Integration between the Service and your Third Party Services, you are expressly instructing Swoop to share Your Data necessary to facilitate the Integration. You are responsible for providing any and all instructions to the Third Party Service provider about the use and protection of Your Data. Swoop and Third Party Service providers are not subprocessors of each other.
10.3 As the data controller of Personal Data, you represent and warrant to Swoop that your provision of Personal Data to Swoop and instructions for processing such Personal Data in connection with the Service shall comply with all Data Protection Laws.
10.4 In accordance with applicable Data Protection Laws, Swoop shall take all commercially reasonable measures to protect the security and confidentiality of Personal Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties. Swoop will provide you with its security policy, upon request, that sets forth the technical specifications and the detailed measures taken to protect the security and confidentiality of Personal Data.
10.5 You may, upon at least thirty (30) days prior notice, and no more than once per 12 month period, appoint an independent third party auditor to physically inspect and audit, at your sole cost and expense, any facilities owned or controlled by Swoop in which Personal Data is processed or stored, provided that such inspection: (a) shall occur on a mutually agreed upon date during Swoop’s regular business hours; (b) does not interfere with any of Swoop’s business operations; and, (c) does not, in Swoop’s reasonable discretion, create any risk to the confidentiality, integrity, or availability of any data stored or processed by Swoop. Prior to any audit, you, and any appointed auditor, must enter into a nondisclosure and confidentiality agreement as may be required by Swoop.
If you provide any feedback to Swoop concerning the functionality and performance of the Service (including identifying potential errors and improvements), you hereby assign to Swoop all right, title, and interest in and to the feedback, and Swoop is free to use the feedback without payment or restriction.
- Cancellation and Termination
12.1 You are solely responsible for properly canceling your account. A phone request to cancel your account is not considered cancellation. Subject to the applicable provisions of these Terms of Service, you may cancel your account at any time in writing by emailing us at [email protected] All information or other content that you upload to the Service (“Content”) will be deleted from the Service upon cancellation. However, this information cannot be recovered once your account is cancelled. Upon valid cancellation, all subsequent period charges will be terminated.
12.2 Swoop, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service for any reason at any time, including your active or passive attempts at disrupting the Services or disrupting the use of the Service by others. Such termination of the Service will result in the suspension or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. Swoop reserves the right to refuse service to anyone for any reason at any time. Except for paying accounts, if you stop using the Service for more than 3 consecutive months, your accounts may also be terminated.
12.3 The terms and conditions in the sections titled “Payment”, “Use of Service”, “Feedback”, “Cancellation and Termination”, “Disclaimer”, “Limitation of Liability”, “Governing Law” and “Miscellaneous” will survive any termination or expiration of your accounts.
You will indemnify Swoop from all damages, costs, settlements, attorneys’ fees and expenses related to any claim related to your breach of these Terms of Service.
The Service is provided on an “as-is” basis and Swoop disclaims any representation or warranty of any kind, whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. Swoop expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and non-infringement. Swoop does not warrant that the service is error-free or that operation of the Service will be secure or uninterrupted.
- Limitation of Liability
15.1 To the maximum extent permitted by applicable law, in no event shall Swoop, its affiliates, directors, employees or its licensors be liable for (a) any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or business or other intangible losses, or the cost of procurement of substitute goods, service or technology, (b) any matter beyond its reasonable control or (c) any amounts that exceed the fees paid by you for the Service in the preceding 12 months. Without limiting the foregoing, under no circumstances will Swoop be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information or content contained therein.
15.2 To the maximum extent permitted by applicable law, Swoop assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of our Service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) user content or the defamatory, offensive, or illegal conduct of any third party. this limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Swoop has been advised of the possibility of such damage. the foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
- Reliability of Service
16.1 Swoop provides connectors that interact with third party applications whose vendors Swoop may or may not have a commercial or contractual relationship with. Swoop continuously monitors the working condition of these connectors and will use its commercially reasonable efforts to resolve any issues that may arise. You understand that Swoop is not liable or can be held responsible for any changes in third party applications and interoperability can be broken temporarily or permanently. Furthermore, Swoop has no commitments to ensuring the working condition of any custom connectors built by you.
16.2 The Service is controlled from our offices in the United States and operated from independent facilities in the United States. Swoop makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the U.S.
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information and Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information and Content for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Government Matters
18.1 Export. Notwithstanding anything else in these Terms of Service, you may not use, or provide to any person or export or re-export or allow the export or re-export of, the Service or anything related thereto or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Each party represents that it is not named on any U.S. government denied-party list. You and Users shall not access or use the Service in a U.S. embargoed country.
18.2 Anti-Corruption. You agree that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Swoop employee or agent in connection with these Terms of Service. If you learn of any violation of the above restriction, you will promptly notify Swoop.
18.3 Commercial Software. The Service (including any related software) are “commercial items” as that term is defined at FAR 2.101. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in these Terms of Service. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in these Terms of Service. This Section is in lieu of, and supersedes, any other FAR, DFARS, DEAR or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under these Terms of Service. Capitalized terms used in this Section are defined in the applicable FAR or DFARs.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Swoop without restriction.
- Governing Law
These Terms of Service shall be governed by the laws of the State of New Mexico without regard to the principles of conflicts of law. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Albuquerque, New Mexico, for the purpose of resolving any dispute relating to your access to or use of the Service.
The terms and conditions of these Terms of Service are severable. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. Both parties agree that these Terms of Service, in conjunction with any subscription forms or agreements, are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms of Service, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and a party does not have any authority of any kind to bind the other party in any respect whatsoever. You acknowledge that any unauthorized use of the Service will cause irreparable harm and injury to Swoop for which there is no adequate remedy at law. In addition to all other remedies available under these Terms of Service, at law or in equity, you further agree that Swoop will be entitled to injunctive relief in the event you use the Service in violation of the limited license granted herein or use the Service in any way not expressly permitted by these Terms of Service. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Failure by either party to enforce any provision of these Terms of Service will not be deemed a waiver of future enforcement of that or any other provision. You agree to participate in press announcements, case studies, trade shows, or other marketing reasonably requested by Swoop. During the term of your agreement with Swoop and for thirty (30) days thereafter, you grant Swoop the right, free of charge, to use your name and/or logo, worldwide, to identify you as such on Swoop’s website or other marketing or advertising materials.