Terms of Service
By using or being granted access to the SiteSwan platform and related services and materials ( the "Service"), the Licensee (herein “You”, “you”, “Licensee” or “your”) are agreeing to be bound by the following terms and conditions ("Terms of Service" or “Agreement”).
SiteSwan (the “Licensor”) reserve(s) the right to update and change these Terms of Service except as otherwise specified herein.
Violation of any of the terms below may result in the termination of your account.
Account / Licensing Terms
1. WHEREAS the SiteSwan services include a multimedia internet based platform capable of building, updating and maintaining web pages or web sites; WHEREAS, Licensee desires to utilize Licensor’s Software Package, as hereinafter defined, to develop, maintain, sell and market websites to customers of Licensee (the "End-User(s)"); and, WHEREAS, Licensor desires to license the Software Package to Licensee and to permit Licensee to sublicense certain access to the Software Package to End-Users in connection with Licensee’s business;; WHEREAS Software Package shall mean the SiteSwan platform, with supporting applications including the Local Prospecting Tool, Client Billing, Reputation Management and Search Engine Submission, that enables licensees to build, host, manage and sell websites and related services to businesses; and WHEREAS, Licensor and Licensee mutually desire to set forth the terms applicable to such work
2. As Licensee, you have a limited, non-exclusive, non-transferable right to use, and, to the extent necessary, sublicense access to the Software Package for the purpose of creating, developing, marketing, selling, and maintaining websites for the benefit of the End-Users. The following uses are the only permissible uses of the Software Package:
a. Using the Software Package to develop websites for the End-Users;
b. Demonstrating the features of the Software Package to potential End-Users;
c. Provide training in the use, integration, and implementation of the features and the Software Package to Licensee's employees, contractors, customers, and End-Users;
d. Using the Software Package to maintain, edit, upgrade, revise or otherwise adjust and amend websites created by End-Users;
e. Allowing End-Users access to the Software Package so that End-Users may upgrade, revise or otherwise adjust and amend websites created by such End-Users;
f. Provide support, training and related assistance to Licensee's employees, contractors, customers, and End-Users; and
g. Using Licensor’s proprietary sales training, tech support and templated marketing materials.
(the “Permissible Uses”)
Licensor may, in its sole discretion, establish usage limits to functions, applications or programs included in the Software Package, which limits Licensee agrees to adhere to. In the event you exceed such limits specified by Licensor, you understand and acknowledge that your use of such functions, applications or programs may be restricted so as to assure your compliance with such usage limits. You will receive no credit or refund in the event of any such restrictions imposed.
3. It is expressly understood and agreed that Licensor hereby retains all rights not expressly granted hereunder.
4. You understand Licensor is the exclusive owner of the Software Package and retains all rights therein and in any software and content derived therefrom as well as in the Licensor’s marks and any and all Intellectual Property rights relating thereto. Intellectual Property shall mean all inventions, discoveries, trademarks, patents, trade names, copyrights, moral rights, know-how, software, source code, object code, shop rights, licenses, developments, research data, designs, technology, trade secrets, test procedures, processes, computer programs, computer discs, computer tapes, literature, reports and other confidential information, intellectual and similarly intangible property rights, whether or not patentable or copyrightable. Licensor retains the absolute right, for any reason or no reason, to limit or rescind the license granted herein to the Licensee or to limit, restrict, or otherwise prohibit the Licensee from providing access to, or use of, the Software Package to any End User for any reason. The license granted to Licensee is non-exclusive and revocable, it being understood that Licensee may issue as many sub- licenses to as many other parties as Licensee may wish to do as long as such rights (i) are consistent with these Terms of Service and (ii) such sub-license expressly notes that such End-Users may not sublicense such rights for any reason. Licensor may terminate the license granted to Licensee upon 30-days’ notice to the Licensee that the license will be terminated, except that, if any of the following as set forth in subsections a through e of this section 1.3 should occur or, in Licensor’s sole and absolute determination, Licensor has reason to believe has occurred or may occur in the future , Licensor shall be permitted to immediately terminate the license:
a. An End User is engaged in or plans to engage in the posting on a SiteSwan developed and/or maintained website any material or content that is illicit, sexually explicit, illegal, discriminatory or in otherwise poor taste.
b. Licensee is engaged in or plans to engage in the posting on a SiteSwan developed and/or maintained website any material or content that is illicit, sexually explicit, illegal, discriminatory or in otherwise poor taste.
c. Licensee or an End User attempts or actually does modify, convert, infect with a computer virus, alter, change, steal or otherwise misappropriate any of the Software Package.
d. Any other material breach of these Terms of Service by Licensee.
e. Licensor demands that Licensee refrain, or cause an End-User to refrain, from a particular marketing and/or advertising activity and Licensee fails to remedy the situation to the satisfaction of Licensor within 10 days.
5. Licensee shall pay to Licensor, on a monthly basis, a set amount as agreed upon during account creation and as may be subject to change by Licensor with 90 days-notice.
6. If Licensee fails to make timely payment of the fees addressed in section 5 above, Licensee shall have 30-days from the date of default in its payment obligation to pay the amount owed to Licensor in full. If Licensee fails to make such payment due within 30-days, Licensor shall be permitted to contact the End User(s) that contracted with Licensee and inform said End Users of such Licensee that the agreement between Licensee and Licensor has been terminated and that their individual website(s) will be terminated within 30-days thereof. The Licensor is free to negotiate and contract with such End User(s) to provide continued support for the End User’s website.
7. Either party is free to terminate the Service upon 30-days’ notice to the other party. At the end of the first term of one year (and each successive year), the Service will automatically renew for an additional year and shall continue until either party terminates the Service upon 30-days’ notice.
8. Licensor hereby reserves the right to modify, change, or alter the Software Package at any time. Licensor also hereby reserves the right to discontinue, terminate or otherwise end distribution of the Software Package, support services, or updates at any time, upon 30 day's written notice to the Licensee.
9. As Licensee you are specifically prohibited and agree that you shall not use any trademark, trade name, trade dress, copyright, company name, corporate name, "doing business as" name, logo, brand, branding or any other media, writing, document, graphic or otherwise that is owned by, or relates in any way to the Licensor or the Licensor’s business (collectively "Licensor’s Identity.") Licensee hereby represents and warrants it has sufficient technical expertise to avoid disclosure or advertisement of the Licensor’s Identity and that the Licensee shall take all steps necessary to avoid the use of Licensor’s Identity in all marketing and advertising materials, as well as on any aspect of the Software Package that is ultimately made available to or is accessible by the End Users.
10. As Licensee you agree to not undertake, or cause any third-party to undertake on its behalf, any steps toward reverse engineering the Software Package. Licensee will not take any steps to expose or otherwise obtain or copy the underlying source code of the Software Package.
11. You understand that "Confidential Information" as used in this Agreement shall mean any and all technical and non-technical information of Licensor (including, without limitation, trademarks, patents, copyrights and works of authorship, trade secrets, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, and software source documents) related to the current, future and proposed business, products and services of Licensor, and its suppliers and customers, and includes, without limitation, information concerning development, design details and specifications, engineering, customer lists, business forecasts, sales, and marketing plans and any other similar information or data which is disclosed to the Licensee or to which the Licensee otherwise gains access as a result of performing under these Terms of Service. "Confidential Information" also includes proprietary or confidential information of any third party that may disclose such information to the Licensee in the course of the Licensee’s business. "Confidential Information" also specifically includes the Software Package as defined above in these Terms of Service, together with any source code included therein to which the Licensee becomes aware at any time. Notwithstanding the foregoing, upon Licensor’s request, Licensee shall immediately provide Licensor with the names and contact information of any End-Users accessing or sub-licensing the Software Package.
12. The Licensee agrees not to use the Confidential Information of the Licensor for any purpose except to the extent necessary to fulfill its obligations under this Agreement. The Licensee agrees not to copy, alter, modify, disassemble, reverse engineer or decompile any of the materials comprising Confidential Information, unless permitted in writing by the Licensor, which may be withheld in Licensor’s sole and absolute discretion. The Licensee agrees not to disclose the Confidential Information to any third parties or to any of its employees, contractors or agents, except in furtherance of these Terms of Service and where such parties are obligated to adhere to the terms of confidentiality. Notwithstanding the foregoing, the Licensee may disclose the Licensor's Confidential Information to the extent required by a valid order of a court or other governmental body or by applicable law ; provided, however, that the Licensee will notify the Licensor of the obligation to make such disclosure in advance so that the Licensor will have a reasonable opportunity to object to such disclosure. The Licensee agrees that it shall treat the Confidential Information with the utmost care and will take all reasonable and prudent steps to guard the Confidential Information from disclosure to any third-party, including any End Users. The Licensee agrees to advise the Licensor in writing of any misappropriation or misuse by any person (including any End User) of the Licensor's Confidential Information of which the Licensee may become aware. Any Confidential Information furnished to the Licensee shall be returned or deleted, promptly at the end of the providing of Services.
13. The Licensor and Licensee are separate and distinct entities and neither party has any control over the actions of the other. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
14. From time to time, this Agreement may be modified or amended by Licensor and shall be done so only by a change in these Terms of Service. Any aspect of these Terms of Service may be modified in this manner, including modification of pricing schedules, features offered in the Software Package, Services offered by the Licensor, legal provisions of these Terms of Service and any other aspect of this agreement that may require modification from time to time. You will be notified of any such update to these Terms of Service via notice that will appear on the Licensor’s website for a period of no less than thirty (30) days. Your continued use of Software Package and/or Services after such thirty (30) day period has elapsed will constitute your acceptance of such changes and you will be bound to such modifications in addition to the other provisions of these Terms of Service. Moreover, it is expressly understood and agreed by Licensee that it is Licensee’s responsibility to verify that Licensee’s users including, but not limited to, those with Owner and/or Staff rights, are informed by Licensee of any changes to these Terms of Service that may impact any such user’s use of the Software Package and/or Services. Licensee will remain liable for any breach of these Terms of Service by such users.
15. You agree that as a Licensee, you may not assign to any third-party any of your rights or obligations set forth under these Terms of Service.
16. You understand that the failure of any party hereto to enforce any provision of these Terms of Service, or any right with respect hereto, or failure to exercise any election provided for herein, shall in no way be considered a waiver of such provision, right, or election, or in any way affect the validity of these Terms of Service. The failure of any party hereto to enforce any provision, right or election shall not prejudice such party from later enforcing or exercising that provision, right, or election which it has under these Terms of Service.
17. You understand that these Terms of Service will be governed by the laws of the State of New York without regard to its conflicts of law provisions, provided that matters affecting copyrights, patents and/or trademarks will be governed by U.S. federal law or state law if required. The parties agree to the Supreme Court of Nassau County as the proper, sole and exclusive venue for any disputes arising between the parties.
18. You understand that if the performance of these Terms of Service , or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party including, but not limited to, Acts of God, war, terrorism, pandemic, flood and/or wind, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.
19. You understand that the Licensor has absolute discretion to remove, restrict, dismantle or block any software access or material that it in its sole discretion it deems to be malicious, greatly exceeding normal usage patterns in bandwidth, data access, or storage space, inappropriate, indecent, in poor taste, pornographic and/or may violate any law (including, but not limited to, copyright, trademark, patent or trade secret). Licensee represents and warrants that it will take reasonable and diligent steps to ensure that any content placed on an End User’s site is not inappropriate, indecent, in poor taste, pornographic and/or does not violate any law (including, but not limited to, copyright, trademark, patent or trade secret).
20. You understand that these Terms of Service shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
21. As the Licensee, you agree to notify Licensor promptly in the event Licensee becomes aware of any infringements (within 72-hours) of the Software Package by an End User. Licensor shall have the right, in its sole discretion, to prosecute lawsuits against third persons for infringement (including End Users) of Licensor's rights in the Software Package.
22. The Licensor, in its sole discretion, may terminate or "ban" an End User from using the Software Package.
23. If this Agreement is terminated as a result of a breach of its terms and conditions by Licensee, expires per any agreement with the Licensor, or terminates or is terminated for any other reason, Licensee shall immediately cease all marketing, advertising, promotion, distribution and/or use of the Software Package including, without limitation, use of any materials provided by Licensor including, but not limited to, the Licensor’s templated marketing materials, and shall require all End Users to do the same.
24. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE PACKAGE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR EXPRESSLY DISCLAIMS ALL LIABILITY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ARISING OUT OF ANY CYBER OR DATA BREACH IMPACTING THE SOFTWARE PACKAGE OR ANY SYSTEM UTILIZED BY THE END USERS OR LICENSEES IN CONNECTION WITH THE SOFTWARE PACKAGE. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE TO LICENSOR FOR THE SOFTWARE PACKAGE DURING THE PRIOR 3 MONTH PERIOD.
25. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PACKAGE IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR AND LICENSOR'S AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PACKAGE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH LICENSEE'S OR END-USER'S ENJOYMENT OF THE SOFTWARE PACKAGE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PACKAGE WILL MEET LICENSEE'S OR THE END-USER'S REQUIREMENTS OR EXPECTATIONS, THAT THE OPERATION OF THE SOFTWARE PACKAGE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PACKAGE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR A LICENSOR-AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PACKAGE PROVE DEFECTIVE, LICENSOR IS NOT RESPONSIBLE FOR ANY REVENUE LOST BY LICENSEE OR END USERS FOR DEFECTS IN THE SOFTWARE PACKAGE OR FOR THE FAILURE OF THE SOFTWARE PACKAGE (AND ANY END USER WEBSITE) TO BE AVAILABLE FOR VIEWING ONLINE.
26. As the Licensee you agree to defend, indemnify, and hold Licensor, and its officers, directors, agents, and employees, harmless against all costs, expenses and losses (including reasonable attorney's fees and costs) incurred through claims of third parties including, but not limited to, End-Users against Licensor based on (i) Licensee's breach of any representations or warranties contained herein,(ii) as a result of Licensee's use or misuse of the Service; or (iii) Licensee’s breach of these Terms of Service.
27. Licensee represents and warrants that:
a. Licensee has the full corporate or other business organizational right, power and authority to enter into this Agreement and to perform the acts required hereunder.
b. Licensee’s acceptance of these Terms of Service, and the performance by Licensee of its obligations and duties hereunder, do not and will not violate any agreement to which Licensee is a party or by which it is otherwise bound.
c. Licensee’s and Licensee’s End-Users materials will neither infringe on any trademark, copyright, U.S. patent or any other third party right nor violate any applicable law or regulation.
d. Licensee acknowledges that the Licensor makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for under these Terms of Service.
e. Licensee has reviewed and accepts the SiteSwan privacy policy and return policy.
28. You agree that in the event of any termination or expiration of these Terms of Service, all obligations and responsibilities of Licensee prior to the termination shall survive and continue in effect and shall be binding upon the parties and their legal representatives, heirs, successors, and assigned. The termination of any provision of these Terms of Service shall not excuse a prior breach of that provision.
29. You agree that if any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid provision shall be deemed to be severed from these Terms of Service.
30. You agree that these Terms of Service constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements, whether in writing or oral, between the parties and is intended as the final expression of their Agreement.
31. Questions about these Terms of Service should be sent to info@siteswan.com
Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service.
Revised as of January 21, 2022
SiteSwan (the “Licensor”) reserve(s) the right to update and change these Terms of Service except as otherwise specified herein.
Violation of any of the terms below may result in the termination of your account.
Account / Licensing Terms
1. WHEREAS the SiteSwan services include a multimedia internet based platform capable of building, updating and maintaining web pages or web sites; WHEREAS, Licensee desires to utilize Licensor’s Software Package, as hereinafter defined, to develop, maintain, sell and market websites to customers of Licensee (the "End-User(s)"); and, WHEREAS, Licensor desires to license the Software Package to Licensee and to permit Licensee to sublicense certain access to the Software Package to End-Users in connection with Licensee’s business;; WHEREAS Software Package shall mean the SiteSwan platform, with supporting applications including the Local Prospecting Tool, Client Billing, Reputation Management and Search Engine Submission, that enables licensees to build, host, manage and sell websites and related services to businesses; and WHEREAS, Licensor and Licensee mutually desire to set forth the terms applicable to such work
2. As Licensee, you have a limited, non-exclusive, non-transferable right to use, and, to the extent necessary, sublicense access to the Software Package for the purpose of creating, developing, marketing, selling, and maintaining websites for the benefit of the End-Users. The following uses are the only permissible uses of the Software Package:
a. Using the Software Package to develop websites for the End-Users;
b. Demonstrating the features of the Software Package to potential End-Users;
c. Provide training in the use, integration, and implementation of the features and the Software Package to Licensee's employees, contractors, customers, and End-Users;
d. Using the Software Package to maintain, edit, upgrade, revise or otherwise adjust and amend websites created by End-Users;
e. Allowing End-Users access to the Software Package so that End-Users may upgrade, revise or otherwise adjust and amend websites created by such End-Users;
f. Provide support, training and related assistance to Licensee's employees, contractors, customers, and End-Users; and
g. Using Licensor’s proprietary sales training, tech support and templated marketing materials.
(the “Permissible Uses”)
Licensor may, in its sole discretion, establish usage limits to functions, applications or programs included in the Software Package, which limits Licensee agrees to adhere to. In the event you exceed such limits specified by Licensor, you understand and acknowledge that your use of such functions, applications or programs may be restricted so as to assure your compliance with such usage limits. You will receive no credit or refund in the event of any such restrictions imposed.
3. It is expressly understood and agreed that Licensor hereby retains all rights not expressly granted hereunder.
4. You understand Licensor is the exclusive owner of the Software Package and retains all rights therein and in any software and content derived therefrom as well as in the Licensor’s marks and any and all Intellectual Property rights relating thereto. Intellectual Property shall mean all inventions, discoveries, trademarks, patents, trade names, copyrights, moral rights, know-how, software, source code, object code, shop rights, licenses, developments, research data, designs, technology, trade secrets, test procedures, processes, computer programs, computer discs, computer tapes, literature, reports and other confidential information, intellectual and similarly intangible property rights, whether or not patentable or copyrightable. Licensor retains the absolute right, for any reason or no reason, to limit or rescind the license granted herein to the Licensee or to limit, restrict, or otherwise prohibit the Licensee from providing access to, or use of, the Software Package to any End User for any reason. The license granted to Licensee is non-exclusive and revocable, it being understood that Licensee may issue as many sub- licenses to as many other parties as Licensee may wish to do as long as such rights (i) are consistent with these Terms of Service and (ii) such sub-license expressly notes that such End-Users may not sublicense such rights for any reason. Licensor may terminate the license granted to Licensee upon 30-days’ notice to the Licensee that the license will be terminated, except that, if any of the following as set forth in subsections a through e of this section 1.3 should occur or, in Licensor’s sole and absolute determination, Licensor has reason to believe has occurred or may occur in the future , Licensor shall be permitted to immediately terminate the license:
a. An End User is engaged in or plans to engage in the posting on a SiteSwan developed and/or maintained website any material or content that is illicit, sexually explicit, illegal, discriminatory or in otherwise poor taste.
b. Licensee is engaged in or plans to engage in the posting on a SiteSwan developed and/or maintained website any material or content that is illicit, sexually explicit, illegal, discriminatory or in otherwise poor taste.
c. Licensee or an End User attempts or actually does modify, convert, infect with a computer virus, alter, change, steal or otherwise misappropriate any of the Software Package.
d. Any other material breach of these Terms of Service by Licensee.
e. Licensor demands that Licensee refrain, or cause an End-User to refrain, from a particular marketing and/or advertising activity and Licensee fails to remedy the situation to the satisfaction of Licensor within 10 days.
5. Licensee shall pay to Licensor, on a monthly basis, a set amount as agreed upon during account creation and as may be subject to change by Licensor with 90 days-notice.
6. If Licensee fails to make timely payment of the fees addressed in section 5 above, Licensee shall have 30-days from the date of default in its payment obligation to pay the amount owed to Licensor in full. If Licensee fails to make such payment due within 30-days, Licensor shall be permitted to contact the End User(s) that contracted with Licensee and inform said End Users of such Licensee that the agreement between Licensee and Licensor has been terminated and that their individual website(s) will be terminated within 30-days thereof. The Licensor is free to negotiate and contract with such End User(s) to provide continued support for the End User’s website.
7. Either party is free to terminate the Service upon 30-days’ notice to the other party. At the end of the first term of one year (and each successive year), the Service will automatically renew for an additional year and shall continue until either party terminates the Service upon 30-days’ notice.
8. Licensor hereby reserves the right to modify, change, or alter the Software Package at any time. Licensor also hereby reserves the right to discontinue, terminate or otherwise end distribution of the Software Package, support services, or updates at any time, upon 30 day's written notice to the Licensee.
9. As Licensee you are specifically prohibited and agree that you shall not use any trademark, trade name, trade dress, copyright, company name, corporate name, "doing business as" name, logo, brand, branding or any other media, writing, document, graphic or otherwise that is owned by, or relates in any way to the Licensor or the Licensor’s business (collectively "Licensor’s Identity.") Licensee hereby represents and warrants it has sufficient technical expertise to avoid disclosure or advertisement of the Licensor’s Identity and that the Licensee shall take all steps necessary to avoid the use of Licensor’s Identity in all marketing and advertising materials, as well as on any aspect of the Software Package that is ultimately made available to or is accessible by the End Users.
10. As Licensee you agree to not undertake, or cause any third-party to undertake on its behalf, any steps toward reverse engineering the Software Package. Licensee will not take any steps to expose or otherwise obtain or copy the underlying source code of the Software Package.
11. You understand that "Confidential Information" as used in this Agreement shall mean any and all technical and non-technical information of Licensor (including, without limitation, trademarks, patents, copyrights and works of authorship, trade secrets, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, and software source documents) related to the current, future and proposed business, products and services of Licensor, and its suppliers and customers, and includes, without limitation, information concerning development, design details and specifications, engineering, customer lists, business forecasts, sales, and marketing plans and any other similar information or data which is disclosed to the Licensee or to which the Licensee otherwise gains access as a result of performing under these Terms of Service. "Confidential Information" also includes proprietary or confidential information of any third party that may disclose such information to the Licensee in the course of the Licensee’s business. "Confidential Information" also specifically includes the Software Package as defined above in these Terms of Service, together with any source code included therein to which the Licensee becomes aware at any time. Notwithstanding the foregoing, upon Licensor’s request, Licensee shall immediately provide Licensor with the names and contact information of any End-Users accessing or sub-licensing the Software Package.
12. The Licensee agrees not to use the Confidential Information of the Licensor for any purpose except to the extent necessary to fulfill its obligations under this Agreement. The Licensee agrees not to copy, alter, modify, disassemble, reverse engineer or decompile any of the materials comprising Confidential Information, unless permitted in writing by the Licensor, which may be withheld in Licensor’s sole and absolute discretion. The Licensee agrees not to disclose the Confidential Information to any third parties or to any of its employees, contractors or agents, except in furtherance of these Terms of Service and where such parties are obligated to adhere to the terms of confidentiality. Notwithstanding the foregoing, the Licensee may disclose the Licensor's Confidential Information to the extent required by a valid order of a court or other governmental body or by applicable law ; provided, however, that the Licensee will notify the Licensor of the obligation to make such disclosure in advance so that the Licensor will have a reasonable opportunity to object to such disclosure. The Licensee agrees that it shall treat the Confidential Information with the utmost care and will take all reasonable and prudent steps to guard the Confidential Information from disclosure to any third-party, including any End Users. The Licensee agrees to advise the Licensor in writing of any misappropriation or misuse by any person (including any End User) of the Licensor's Confidential Information of which the Licensee may become aware. Any Confidential Information furnished to the Licensee shall be returned or deleted, promptly at the end of the providing of Services.
13. The Licensor and Licensee are separate and distinct entities and neither party has any control over the actions of the other. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
14. From time to time, this Agreement may be modified or amended by Licensor and shall be done so only by a change in these Terms of Service. Any aspect of these Terms of Service may be modified in this manner, including modification of pricing schedules, features offered in the Software Package, Services offered by the Licensor, legal provisions of these Terms of Service and any other aspect of this agreement that may require modification from time to time. You will be notified of any such update to these Terms of Service via notice that will appear on the Licensor’s website for a period of no less than thirty (30) days. Your continued use of Software Package and/or Services after such thirty (30) day period has elapsed will constitute your acceptance of such changes and you will be bound to such modifications in addition to the other provisions of these Terms of Service. Moreover, it is expressly understood and agreed by Licensee that it is Licensee’s responsibility to verify that Licensee’s users including, but not limited to, those with Owner and/or Staff rights, are informed by Licensee of any changes to these Terms of Service that may impact any such user’s use of the Software Package and/or Services. Licensee will remain liable for any breach of these Terms of Service by such users.
15. You agree that as a Licensee, you may not assign to any third-party any of your rights or obligations set forth under these Terms of Service.
16. You understand that the failure of any party hereto to enforce any provision of these Terms of Service, or any right with respect hereto, or failure to exercise any election provided for herein, shall in no way be considered a waiver of such provision, right, or election, or in any way affect the validity of these Terms of Service. The failure of any party hereto to enforce any provision, right or election shall not prejudice such party from later enforcing or exercising that provision, right, or election which it has under these Terms of Service.
17. You understand that these Terms of Service will be governed by the laws of the State of New York without regard to its conflicts of law provisions, provided that matters affecting copyrights, patents and/or trademarks will be governed by U.S. federal law or state law if required. The parties agree to the Supreme Court of Nassau County as the proper, sole and exclusive venue for any disputes arising between the parties.
18. You understand that if the performance of these Terms of Service , or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party including, but not limited to, Acts of God, war, terrorism, pandemic, flood and/or wind, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.
19. You understand that the Licensor has absolute discretion to remove, restrict, dismantle or block any software access or material that it in its sole discretion it deems to be malicious, greatly exceeding normal usage patterns in bandwidth, data access, or storage space, inappropriate, indecent, in poor taste, pornographic and/or may violate any law (including, but not limited to, copyright, trademark, patent or trade secret). Licensee represents and warrants that it will take reasonable and diligent steps to ensure that any content placed on an End User’s site is not inappropriate, indecent, in poor taste, pornographic and/or does not violate any law (including, but not limited to, copyright, trademark, patent or trade secret).
20. You understand that these Terms of Service shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
21. As the Licensee, you agree to notify Licensor promptly in the event Licensee becomes aware of any infringements (within 72-hours) of the Software Package by an End User. Licensor shall have the right, in its sole discretion, to prosecute lawsuits against third persons for infringement (including End Users) of Licensor's rights in the Software Package.
22. The Licensor, in its sole discretion, may terminate or "ban" an End User from using the Software Package.
23. If this Agreement is terminated as a result of a breach of its terms and conditions by Licensee, expires per any agreement with the Licensor, or terminates or is terminated for any other reason, Licensee shall immediately cease all marketing, advertising, promotion, distribution and/or use of the Software Package including, without limitation, use of any materials provided by Licensor including, but not limited to, the Licensor’s templated marketing materials, and shall require all End Users to do the same.
24. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE PACKAGE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR EXPRESSLY DISCLAIMS ALL LIABILITY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ARISING OUT OF ANY CYBER OR DATA BREACH IMPACTING THE SOFTWARE PACKAGE OR ANY SYSTEM UTILIZED BY THE END USERS OR LICENSEES IN CONNECTION WITH THE SOFTWARE PACKAGE. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE TO LICENSOR FOR THE SOFTWARE PACKAGE DURING THE PRIOR 3 MONTH PERIOD.
25. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PACKAGE IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR AND LICENSOR'S AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PACKAGE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH LICENSEE'S OR END-USER'S ENJOYMENT OF THE SOFTWARE PACKAGE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PACKAGE WILL MEET LICENSEE'S OR THE END-USER'S REQUIREMENTS OR EXPECTATIONS, THAT THE OPERATION OF THE SOFTWARE PACKAGE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PACKAGE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR A LICENSOR-AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PACKAGE PROVE DEFECTIVE, LICENSOR IS NOT RESPONSIBLE FOR ANY REVENUE LOST BY LICENSEE OR END USERS FOR DEFECTS IN THE SOFTWARE PACKAGE OR FOR THE FAILURE OF THE SOFTWARE PACKAGE (AND ANY END USER WEBSITE) TO BE AVAILABLE FOR VIEWING ONLINE.
26. As the Licensee you agree to defend, indemnify, and hold Licensor, and its officers, directors, agents, and employees, harmless against all costs, expenses and losses (including reasonable attorney's fees and costs) incurred through claims of third parties including, but not limited to, End-Users against Licensor based on (i) Licensee's breach of any representations or warranties contained herein,(ii) as a result of Licensee's use or misuse of the Service; or (iii) Licensee’s breach of these Terms of Service.
27. Licensee represents and warrants that:
a. Licensee has the full corporate or other business organizational right, power and authority to enter into this Agreement and to perform the acts required hereunder.
b. Licensee’s acceptance of these Terms of Service, and the performance by Licensee of its obligations and duties hereunder, do not and will not violate any agreement to which Licensee is a party or by which it is otherwise bound.
c. Licensee’s and Licensee’s End-Users materials will neither infringe on any trademark, copyright, U.S. patent or any other third party right nor violate any applicable law or regulation.
d. Licensee acknowledges that the Licensor makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for under these Terms of Service.
e. Licensee has reviewed and accepts the SiteSwan privacy policy and return policy.
28. You agree that in the event of any termination or expiration of these Terms of Service, all obligations and responsibilities of Licensee prior to the termination shall survive and continue in effect and shall be binding upon the parties and their legal representatives, heirs, successors, and assigned. The termination of any provision of these Terms of Service shall not excuse a prior breach of that provision.
29. You agree that if any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid provision shall be deemed to be severed from these Terms of Service.
30. You agree that these Terms of Service constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements, whether in writing or oral, between the parties and is intended as the final expression of their Agreement.
31. Questions about these Terms of Service should be sent to info@siteswan.com
Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service.
Revised as of January 21, 2022