Shwego Software Support Services Agreement

This Agreement includes and hereby incorporates by reference any Software License Agreement executed between you and shwego, as well as any policies or exhibits linked to or referenced herein. Please note that we may modify this Agreement at any time.

This Software Support Services Agreement (the “Agreement“) is entered into by and between Shwego Solutions, LLC, a Pennsylvania Limited Liability Company having its principal place of business at 500 Office Center Drive, Suite 4012, Fort Washington PA 19034 (the “Provider“) and You (the “Customer“, and together with the Provider, the “Parties“, and each, a “Party“).

By using, installing, or accessing our website, software application, or Services (as defined below), by signing or clicking to accept these terms or any Software License Agreement (as defined below) referencing these terms, you agree to be bound by the following terms and conditions (together, these “Terms”, or this “Agreement”).

If you are using a shwego Service on behalf of a company, organization, or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement is entered into by an employee, agent, or other authorized representative with all necessary authority to bind that entity to this Agreement.

WHEREAS, the Customer is licensing the Licensed Software from the Provider under a separately executed Software License Agreement (as defined below); and

WHEREAS, the Customer desires to obtain software support services from the Provider for the Licensed Software, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions. Capitalized terms shall have the meanings set forth or referred to in this Section, or in the Section in which they first appear in the Agreement.

“Action” has the meaning set forth in Section 11.1.

“Confidential Information” means all non-public or proprietary information treated as confidential by a Party, including all: (a) information concerning a Party’s past, present and future business affairs including finances, products, services, organizational structure, internal practices, forecasts and sales; (b) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how and other confidential intellectual property; (c) designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (d) any third-party confidential information included with, or incorporated in, any information provided by a Party; and (e) all Notes prepared by a Party or its Representatives that contain, reflect or are derived from, in whole or in part, any of the foregoing. Except as required by applicable federal, state or local law or regulation, Confidential Information shall not include information that, at the time of disclosure: (i) is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by the receiving Party or any of its Representatives; ii) is, or thereafter becomes, available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; iii) was known by or in the possession of the receiving Party or its Representatives, as established by documentary evidence, prior to being disclosed by or on behalf of the disclosing Party; or (iv) was or is independently developed by the receiving Party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the disclosing Party’s Confidential Information.

“Controlled Technology” has the meaning set forth in Section 15.

“Designated Site(s)” means any of the Customer’s facilities set forth in Exhibit A.

“Documentation” means user manuals, technical manuals and any other materials provided by the Provider, in printed and electronic form, that describe the installation, operation, use and technical specifications of the Licensed Software.

“Error” means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.

“First Line Support” means, in connection with the identification, diagnosis and correction of Errors, the provision of:

telephone/e-mail/chat assistance;
Remote Services; and
access to technical information on the Provider’s website for proper use of the Software.

“Incident” means a support request that begins when the Customer contacts Provider to report one specific Error and ends when the Provider either:

Resolves the Error; or
determines in its sole/reasonable discretion that the Error cannot be Resolved.

“Indemnified Party” has the meaning set forth in Section 11.4.

“Indemnifying Party” has the meaning set forth in Section 11.4.

“Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases, (d) trade secrets, know and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world.

“Licensed Software” means [version [CURRENT SOFTWARE VERSION AND RELEASE NUMBER of] the [NAME OF SOFTWARE], together with any Maintenance Releases provided to the Customer pursuant to the Software License Agreement.

“Loss or Losses” means damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees, resulting from any third-party action that is subject to indemnification under Section 11.

“Maintenance Release” means any update or release of the Licensed Software that the Provider may provide to the Customer from time to time during the Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Licensed Software, but does not constitute a New Version.

“New Version” means any new version of the Licensed Software that the Provider may from time to time introduce and market generally as a distinct licensed product, and which the Provider may make available to the Customer at an additional cost under a separate written agreement.

“Normal Business Hours” means Monday through Friday, 8 AM Eastern Time through 5 PM Eastern Time..

“Notes” means any notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials.

“[Open-source Components” means any software components included with or embedded in the Licensed Software that are subject to an open-source copyright license agreement that conforms to a standard definition set by the Open Source Initiative.]

“Open-source License” has the meaning set forth in Section 14.

“Optional Support Services” means any of the Services set out in Exhibit B, and any other services that the Customer and Provider may from time to time agree shall be supplied by the Provider to the Customer under this Agreement.

“Remote Access Software” has the meaning set forth in Section 2.3.

“Remote Services” means the delivery of Services remotely over the internet through the use of Remote Access Software that the Provider installs on the Customer’s [network/system/computers].

“Representatives” means a Party’s affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns.

“Resolve” means the provision of:

Services that, in the Provider’s sole/reasonable discretion, corrects the Error;
information to the Customer that corrects the Error;
information to the Customer on how to obtain a software solution that corrects the Error;
notice to the Customer that the Error is caused by a known, unresolved issue or an incompatibility issue with the Software;
information to the Customer that identifies the Error as being resolved by upgrading to a newer release of the Software; or
notice to the Customer that the Error has been identified as an issue with a Third-Party Product.

“Response or Respond” means the Provider’s initial communication with the Customer, whether by telephone, e-mail or otherwise, acknowledging the Customer’s request for Services in connection with a specific Error.

“Second Line Support” means, in connection with the identification, diagnosis and correction of Errors, the provision of on-site technical support at the Customer’s [premises/Designated Site(s)].

“Services” means support services for the Software to be provided by the Provider to the Customer during the Term as set forth in Section 2 of this Agreement.

“Severity Level One Incident” means an Error causing the Software to not operate and there is a critical impact to the Customer’s business operations.

“Severity Level Two Incident” means an Error resulting in a lack of Software functionality that materially degrades significant aspects of the Customer’s business operations.

“Severity Level Three Incident” means an Error that impairs the performance of the Software, but does not substantially affect the Customer’s business operations.

“Software License Agreement” means the agreement entered into by and between the Provider and the Customer and dated [ENTER DATE], that grants to the Customer a limited license to access and use the Licensed Software pursuant to the terms and conditions set forth therein.

“Territory” means [DESCRIPTION OF TERRITORY].

“Technical Contact(s)” has the meaning set forth in Section 5.7.

“Third-party Products” means all third-party software (including all Open-source Components), computer hardware, network hardware, electrical, telephone, wiring and all related accessories, components, parts and devices.

Services. The Provider shall provide the Services set forth in this Section 2 in the Territory during the Term solely in accordance with the terms and conditions of this Agreement, until the expiration or termination of this Agreement.
1. Scope of Services. The Provider shall deliver [up to [NUMBER] hours of] First Line Support [per month/quarter] and [up to [NUMBER] hours of] Second Line Support [per month/quarter] [at the Customer’s Designated Site(s)] to Resolve any Incidents reported by the Customer during the Term. The Provider, in its [sole/reasonable] discretion, shall determine the amount of time it will need to spend to Resolve any specific Incident. The Provider shall initially provide First Line Support to the Customer to attempt to Resolve the reported Incident. The Provider shall subsequently provide Second Line Support as the Provider, in its [sole/reasonable] discretion, deems necessary to Resolve the Incident.
2. Response Time. The Provider shall use commercially reasonable efforts to Respond to Incidents reported by the Customer during the Term within the following timeframes:
  1. for a Severity Level One Incident, such as data not displaying properly, within [NUMBER] hours of the Provider’s receipt of the Customer’s notification [on a 24/7 basis/during Normal Business Hours];
  2. for a Severity Level Two Incident, within [NUMBER] hours of the Provider’s receipt of the Customer’s notification [on a 24/7 basis/during Normal Business Hours]; and
  3. for a Severity Level Three Incident such as normal maintenance, within [NUMBER] [hours/days] of the Provider’s receipt of the Customer’s notification during Normal Business Hours.
3. Remote Services. The Customer acknowledges and agrees that the Provider may provide Remote Services to the Customer to assist in analyzing and Resolving any Incident during the term of this Agreement. The Customer agrees to provide the Provider with access to the Customer’s network/system/computers to install and use remote access software (“Remote Access Software“) necessary for the Provider to provide the Remote Services to the Customer. The Remote Access Software contains technological measures designed to collect and transmit to the Provider certain diagnostic, technical, usage and related information, including information about the Customer’s computers, systems, network and any Third-Party Products, relating to or derived from the Customer’s use of Licensed Software. The Customer acknowledges and agrees that the Provider and its Representatives may collect, maintain, process and use this information in the course of performing the Services under this Agreement, provided that the Provider shall only access, control and gather such information that it reasonably believes is necessary to assist in analyzing and Resolving the Incident. The Customer acknowledges and agrees that all or portions of the Remote Access Software may remain on the Customer’s network/system/computers after an Incident is Resolved. At all times the Customer’s information will be treated in accordance with the Provider’s privacy policy, as amended from time to time, which can be viewed at: _______________ (do you want on Shwego.com?.]
4. Optional Services. The Provider, in its sole discretion, may provide Optional Services to the Customer on the Customer’s request, at the Provider’s standard hourly rates then in effect. The terms and conditions of this Agreement shall govern the provision of any Optional Services delivered by the Provider to the Customer.
5. Training. The Provider shall provide up to _________ hours of training to the Customer’s employees during the Term on [installing, maintaining and] using the Software[, at the Provider’s standard hourly rates then in effect. The Provider shall provide training only [remotely/at a Designated Site] during Normal Business Hours on [a date/dates] to be mutually agreed on by the Parties.
6. Maintenance Releases. During the Term, the Provider shall provide the Customer with all Maintenance Releases under the terms and conditions set forth in the Software License Agreement. The Customer shall not have any right by virtue of this Agreement to receive any New Versions of the Software that the Provider may, in its sole discretion, release from time to time.
7. Changes to Services. The Provider may, in its sole discretion, amend the Services to be provided on [[NUMBER] days’ prior] written notice to the Customer, provided that the Provider shall not amend the Services in any manner that materially affects or otherwise reduces the:
  1. Provider’s level of effort in performing the Services;
  2. Provider’s obligation to provide the Services under this Agreement; or
  3. Customer’s rights under this Agreement.
Limitations.
1. Incidents. The Provider, in its sole and reasonable discretion, shall determine:
  1. what constitutes an Incident; and
  2. to the extent permitted by law, when an Incident is deemed to be Resolved.
2. Response Times. The Provider shall use commercially reasonable efforts to Respond within the applicable response time provided in Section 2.2, but does not guarantee that it will be able to Respond within that specific time period.
3. No Guarantee. The Provider will use commercially reasonable efforts to Resolve an Incident, but does not guarantee that the Incident will be Resolved.
4. Scope of Services. The Provider shall only provide Services for Errors that arise during the Term. The Provider shall not provide any Services under this Agreement for any Errors arising out of or relating to any problems, defects or any other performance issues caused, in whole or in part, by any Third-Party Products.
5. On-Site Visits. The Provider shall provide on-site Second Line Support only at the Designated Site(s) during Normal Business Hours, unless otherwise agreed to by the Provider in writing.
Exclusions. The Provider shall have no obligation to provide Services relating to Errors that arise out of or result from, in whole or in part, any:
1. negligence, abuse, misapplication or incorrect use of, or damage to, the Software by the Customer or its Representatives, except as authorized by the Provider in writing or as set forth in the Documentation;
2. circumstances or causes outside of the control of the Provider, including, without limitation, any electrical surges, failures or fluctuations;
3. use of the Software in combination with any Third-Party Products not specified in the Documentation or authorized by the Provider in writing;
4. any fault or failure in any Third-Party Products;
5. relocation or installation of the Software by any person other than the Provider or its Representatives;
6. any breach by the Customer or its Representatives of the Customer’s obligations under this Agreement or the Software License Agreement;
7. any Error that can be Resolved with the installation of a Maintenance Release that the Provider has previously made available; or
8. any maintenance, updates, improvements or other modifications to the Software by the Customer or its Representatives, except as authorized by the Provider in writing or as permitted in the Software License Agreement.
Customer Obligations.
1. Notification. The Customer shall [immediately/promptly] notify the Provider of any Error and provide the Provider with reasonable detail of the nature and circumstances of the Error.
2. Compliance. The Customer shall comply with the terms and conditions set forth in this Agreement and the Software License Agreement.
3. Use. The Customer shall use the Software solely in accordance with the terms and conditions set forth in the Software License Agreement and any accompanying Documentation.
4. Environment. The Customer shall ensure that the environmental conditions for all networks, systems and hardware that the Software operates on are maintained within the limits set forth in the Documentation.
5. Access. In connection with the performance of the Services, the Customer shall provide the Provider with:
  1. reasonable, uninterrupted access, both physical and virtual, to the Customer’s premises, systems, facilities and Software as may be required for the Provider to perform the Services. The Customer shall provide a safe working environment to allow the Provider to perform the Services;
  2. reasonable access to the appropriate Customer personnel, including, without limitation, network, systems, operations and applications personnel; and
  3. all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.
6. Data Back-up. Customer agrees to back up all data, files and information prior to the commencement of any Services and assume sole responsibility for any lost or altered data, files and information.
7. Technical Contact. The Customer shall designate in Exhibit C the person(s) who will act as a direct liaison with the Provider and be responsible for communicating with, and providing accurate information and feedback to, the Provider in a timely manner in connection with the Services to be provided under this Agreement (“Technical Contact(s)“). The Technical Contact(s) shall be the sole liaison(s) between the Customer and Provider in reporting Incidents and communicating with the Provider in connection with any matters relating to the provision of Services. The Customer shall provide at least two (2) days’ prior written notice to the Provider of any change in the names of the Technical Contact(s) or their contact information.
8. Information. The Customer shall provide the Provider with all information reasonably requested by the Provider from time to time relating to the Customer’s use of the Software, including, without limitation, information on the Customer’s network, systems and any Third-Party Products.
9. Current Release. Except as otherwise specified in this Agreement, the Customer must be running the current release level of the Software that the Provider has made available to its customers. The Customer shall install all Maintenance Releases within five (5) days from the date they are made available by the Provider.
Service Fees; Payment Terms.
1. Service Fees. In consideration of the Services provider to the Customer under this Agreement, the Customer shall pay to the Provider the fees set forth in Exhibit C in accordance with the terms of this Section. If the Term is renewed for any Renewal Term(s) pursuant to Section 8.1, the Customer shall pay the then-current fees that the Provider charges for the Services during the applicable Renewal Term.
2. Remedial Fees. If Incident falsely reported or cause of system problems other than Software, Customer charged at Provider’s standard hourly rates then in effect for Second Line Support Services.
3. Payment Terms. The Customer shall pay 100% of the fees due and owing under this Agreement within two (2) days of the months end. All payments hereunder shall be in US dollars and made by AACH or wire transfer.
4. Late Payment. The Customer shall notify the Provider in writing of any dispute with any invoice (along with all relevant details regarding the dispute) within two (2) days from the date of invoice. Invoices for which no such timely notification is received shall be deemed accepted by the Customer as true and correct. All late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Agreement or at law (which the Provider does not waive by the exercise of any rights hereunder), the Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any amount when due hereunder and such failure continues for sixty (60) days.
5. Expense Reimbursement. The Customer shall reimburse the Provider for all reasonable out-of-pocket disbursements and expenses, including travel and lodging expenses, incurred by the Provider in connection with providing on-site Second Line Support for any Severity Level Two or Severity Level Three Incidents during the Term. On the Customer’s request, the Provider shall submit reasonable documentation to the Customer with respect to each such expense incurred.
6. Taxes. The Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by the Customer hereunder; provided, that, in no event shall the Customer pay or be responsible for any taxes imposed on, or with respect to, the Provider’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Ownership. The Customer acknowledges and agrees that it shall not acquire any ownership interest in the Licensed Software under this Agreement, and that the Provider [and its licensor[s]] reserve[s] and shall retain [its/their] entire right, title and interest in and to the Licensed Software and all Intellectual Property Rights arising out of or relating to the Licensed Software, except as expressly granted to the Customer in the Software License Agreement.
Term; Termination.
1. Term. The term of this Agreement shall commence on the Effective Date and shall continue thereafter for a period of two (2) month(s)/year(s)], unless and until terminated as provided hereunder (the “[Initial] Term“). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive thirty (30) day terms unless and until either Party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“), or unless and until sooner terminated as provided hereunder. If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms in effect immediately prior to such renewal, subject to any change in the amount of fees payable hereunder by the Customer during the applicable Renewal Term as set forth in this Section 8.1.
2. Termination. This Agreement may be terminated prior to the expiration of the Term on written notice:
  1. by the Provider, if the Customer fails to pay any amount when due hereunder and such failure continues for sixty (60) days;
  2. by the Provider, if the Customer commits a breach of any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Customer within sixty (60)] days after the Customer’s receipt of written notice of such breach;
  3. by the Customer, if the Provider commits a breach of any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Provider within sixty (60) days after the Provider’s receipt of written notice of such breach; or
  4. automatically, effective immediately, on the termination of the Software License Agreement; or
  5. by either Party, effective immediately, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
3. Effect of Termination. The expiration or termination of this Agreement, for any reason, shall not release either Party from any liability to the other Party, including any payment obligation that has already accrued hereunder.
4. Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of this Agreement, shall survive the expiration or earlier termination of this Agreement for any reason, provided that with respect to Section 9, each Party’s obligations under this Section, shall survive the expiration or earlier termination of this Agreement for a period of three (3) years from the date of such expiration or termination, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
Confidentiality.
1. Receiving Party Obligations. Each Party acknowledges and agrees that they each may gain access to or become familiar with the other Party’s Confidential Information. Except as set forth in Section 9.2, each Party, as the receiving Party of the other Party’s Confidential Information, shall:
  1. protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
  2. not use the disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement, or otherwise in any manner to the Disclosing Party’s detriment;
  3. not disclose any such Confidential Information to any person or entity, except to the receiving Party’s Representatives who (i) need to know the Confidential Information to assist the receiving Party, or act on its behalf, in relation to the Purpose or to exercise its rights under the Agreement; (ii) are informed by the receiving Party of the confidential nature of the Confidential Information; and (iii) are subject to confidentiality duties or obligations to the receiving Party that are no less restrictive than the terms and conditions of this Agreement; and
  4. be responsible for any breach of this Agreement caused by any of its Representatives.
2. Required Disclosure. The receiving Party may disclose the disclosing Party’s Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order“), provided that the receiving Party shall first make commercially reasonable efforts to provide the disclosing Party with:
  1. prompt written notice of such requirement so that the disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
  2. reasonable assistance, at the disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
Representations and Warranties.
1. Mutual Representations. Each Party represents to the other Party that it:
  1. is an entity duly organized and validly existing under the laws of its jurisdiction of organization;
  2. is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required; and
  3. has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement.
2. Limited Warranty. The Provider warrants to the Customer that the Services shall be performed:
  1. in material compliance with all applicable laws, regulations and rules relating to the performance of the Services;
  2. in a professional and workmanlike manner in accordance with commercially reasonable/best industry standards; and
  3. with personnel qualified to perform the tasks necessary for delivering the Services.
3. Disclaimer. THIS AGREEMENT IS INTENDED TO BE A SERVICE AGREEMENT AND NOT A SERVICE WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES OR SOFTWARE [(INCLUDING ALL OPEN-SOURCE COMPONENTS)] PROVIDED TO THE CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE PROVIDER DOES NOT WARRANT THAT ALL ERRORS WILL BE RESOLVED, OR WILL BE RESOLVED WITHIN A SPECIFIED PERIOD OF TIME. THIS AGREEMENT DOES NOT AMEND OR AUGMENT THE PROVIDER’S WARRANTIES SET FORTH IN THE SOFTWARE LICENSE AGREEMENT, OR IN ANY MANNER ALTER THE LIMITATIONS OR RESTRICTIONS PROVIDED FOR THEREUNDER.
Indemnities.
1. Provider Indemnity. Subject to the terms and conditions set forth in Section 11.2, Section 11.4 and Section 11.5, the Provider shall indemnify, defend and hold harmless the Customer and its Representatives from and against any third-party claim, suit, action or proceeding (each, an “Action“) arising in the Territory that is brought against the Customer and all related Losses that are awarded against the Customer in a final judgment, arising out of or resulting from:
  1. the infringement or misappropriation any patent, patent application issued or published on or before the Effective Date, copyright or trademark of a third party in the Territory by the Provider in delivering the Services, provided that the Provider shall not be obligated to indemnify the Customer or its Representatives in connection with any Action relating to the use of any Open-source Components in providing the Services or any corresponding deliverables (including any Remote Access Software); or
  2. any bodily injury, death of any person or damage to real or tangible, personal property caused by the willful, fraudulent or negligent acts or omissions of the Provider; or
  3. the Provider’s material breach of any representation or warranty of the Provider in this Agreement set forth in Section 10.1 or Section 10.2 of this Agreement].
2. Exceptions to Provider’s Indemnity Obligations. Notwithstanding anything to the contrary in this Agreement, the Provider shall not be obligated to indemnify the Customer or any of its affiliates, employees, officers, directors, partners or shareholders for any Losses incurred in any Action, to the extent any such action and corresponding Losses arise out of or result from, in whole or in part, the Customer’s:
  1. willful, fraudulent or [grossly] negligent acts or omissions;
  2. use of the Software in any manner not otherwise authorized under the Software License Agreement; or
  3. failure to comply with its obligations set forth in this Agreement or the Software License Agreement.
3. Customer Indemnity. Subject to the terms and conditions set forth in Section 11.4 and Section 11.5, the Customer shall indemnify, defend and hold harmless the Provider and its Representatives from and against any Action arising in the Territory that is brought against the Provider and all related Losses that are incurred by the Provider, arising out of or resulting from:
  1. any bodily injury, death of any person or damage to real or tangible, personal property caused by the willful, fraudulent or negligent acts or omissions of the Customer; or
  2. the Customer’s breach of any representation or warranty of the Customer in this Agreement as set forth in Section 10.1 of this Agreement.
4. Indemnified Party Obligations; Control of Defense. If either Party (an “Indemnified Party“) receives written notice of the commencement of any Action or the imposition of any penalty or assessment for which indemnity may be sought under this Section 11.4, and the Indemnified Party intends to seek indemnity from the other Party (the “Indemnifying Party“) pursuant to this Section, the Indemnified Party shall promptly provide the Indemnifying Party with written notice of such Action. The Indemnifying Party shall be entitled to assume, at its sole option, the control of the defense, appeal or settlement of such Action. The Indemnified Party shall fully cooperate with the Indemnifying Party in connection therewith. The Indemnified Party shall be entitled at any time to employ separate counsel to represent the Indemnified Party, but if the defense, appeal or settlement of such Action has been assumed by the Indemnifying Party, any separate counsel employed by the Indemnified Party shall be at the Indemnified Party’s sole expense. The Indemnified Party shall not settle any Action without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
5. Sole Remedy. THIS SECTION SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION AS AN INDEMNIFYING PARTY AND EACH PARTY’S SOLE REMEDY AS AN INDEMNIFIED PARTY FOR ANY CLAIM WHICH INDEMNITY MAY BE SOUGHT UNDER THIS AGREEMENT.
Non-solicitation. During the term of this Agreement and for a period of twelve (12)] months after its termination, the Customer shall not, without the Provider’s prior written consent, solicit for employment any of the Provider’s employees with whom it shall have had a direct involvement or connection with the provision of Services hereunder. In the event of a violation of this provision, the parties hereto understand and agree that actual damages will be difficult to determine and, therefore agree that Customer shall pay to the Provider the sum of 125% of one year’s direct salary of each employee solicited and hired as liquidated damages and not as a penalty.
Limitation of Liability.
1. No Consequential or Indirect Damages. IN NO EVENT WILL THE PROVIDER OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Maximum Liability. IN NO EVENT WILL THE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED four (4) TIMES THE TOTAL AMOUNT PAID OR PAYABLE TO THE PROVIDER PURSUANT TO THIS AGREEMENT [IN THE one (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM [OR $[AMOUNT], WHICHEVER IS LESS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Open-source Components. The deliverables provided by the Provider under this Agreement (including Remote Access Software) includes Open-source Components licensed under [NAME(S) OF OPEN-SOURCE LICENSE(S)], a copy of which can be found at [OPEN-SOURCE LICENSE URL(S)] (“Open-source License(s)“). Any use of the Open-source Components by the Customer shall be governed by, and subject to, the terms and conditions of the Open-source License(s). On written request to the Provider, the Provider shall provide the Customer with a complete, machine-readable copy of the source code for such Open-source Components in accordance with the terms of the Open-source License(s) at no cost to the Customer.
Export Regulation. The Licensed Software, Documentation, deliverables (including Remote Access Software) provided in the course of delivering Services and any related technical data, and products utilizing any of the foregoing (collectively, “Controlled Technology“) may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Customer shall not, and shall not permit any third parties to, export, re-export or release, directly or indirectly any Controlled Technology to a jurisdiction or country to which the export, re-export or release of any Controlled Technology is prohibited by applicable federal law, regulation or rule. The Customer shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting or re-exporting any Controlled Technology.
Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania in each case located in the county of Montgomery or in the Third Circuit located in the City of Philadelphia, Pennsylvania., and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Customer shall not withhold payment of any fees owing under this Agreement by reason of any set-off of any claim or dispute with the Provider, whether relating to the quality or performance of the Licensed Software or otherwise.
WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by a Party from time to time in accordance with this Section).
Miscellaneous.
1. Force Majeure. Excepting only Customer’s payment obligations under this Agreement, neither Party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including, but not limited to, strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, loss of internet or telephone connectivity, heat, light, air conditioning or Customer equipment, loss and destruction of property or any other circumstances or causes beyond such Party’s reasonable control.
2. Further Assurances. Each Party shall, on the reasonable request, and at the sole cost and expense, of the other Party, take, execute, acknowledge and deliver all such further acts, documents and instruments necessary to give full effect to this Agreement.
3. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.
4. Publicity. Neither Party shall use the other Party’s trademarks, service marks, trade names, logos, symbols or brand names, or otherwise issue or release any announcement, statement, press release or other publicity or marketing materials relating to the existence or subject matter of this Agreement, or the relationship between the Parties, in each case, without the prior written consent of the other Party[, which consent shall not be unreasonably withheld or delayed. OR which may be withheld in such Party’s sole discretion].
5. Entire Agreement. This Agreement, together with all exhibits attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. In the event of a conflict between the terms, provisions and conditions contained in the body of this Agreement and the terms, provisions and conditions contained in the Exhibits to this Agreement, the term, provisions and conditions contained in the body of this Agreement shall prevail. In no event shall the provisions of any purchase order or any associated documentation used by the Customer constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of the Provider to object to any purchase order or associated documentation.
6. Assignment. The Customer shall not assign or transfer any of its rights or delegate any of its obligations hereunder without the prior written consent of the Provider. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations hereunder. For clarification, and subject to the foregoing, all licenses assigned in accordance with this Agreement will be deemed transferred to the applicable assignee, and this Agreement will be binding and inure to the benefit of their respective successors and assigns.
7. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
9. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10. Attorneys’ Fees. In the event that either Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
11. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
12. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
13. Counterparts. This Agreement may be executed via facsimile, DocuSign or similar electronic convention, or .pdf in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, shall be considered one and the same instrument. This Agreement and each of the Transaction Agreements shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties; it being understood that all Parties need not sign the same counterpart.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

Shwego Solutions, LLC

By_____________________

Name:

Title:

[CUSTOMER NAME]

By_____________________

Name:

Title:

Exhibit A

[DESIGNATED SITE(S)]

Exhibit B

OPTIONAL SUPPORT SERVICES

Exhibit C

TECHNICAL CONTACT(S)

Shwego Software Support Services Agreement

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