Revision Date: March 10th, 2017
BY USING THE PROPRIETARY SWINGVY SOFTWARE SERVICE OFFERED AT SWINGVY.COM (THE “SERVICE”), YOU (EITHER AS AN INDIVIDUAL OR AN ENTITY) AGREE TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”) WITH SWINGVY, SDN BHD (“SWINGVY”). IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE THE SERVICE.
If you are signing up for the Service on behalf of an entity, you represent that you are duly authorized to represent the entity and accept the terms of this Agreement on behalf of such entity, and any references to “you” in this Agreement refer to such entity and all of its employees, consultants, and agents.
Term and Termination
- This Agreement will remain in effect until all subscriptions granted in accordance with this Agreement have expired or this Agreement is terminated by you or Swingvy (the “Term”). If you elect to use the Service for a free trial period, and do not purchase a subscription before the end of such period, this Agreement will expire at the end of the free trial period.
- User subscriptions purchased by you commence on the start date specified upon payment and continue for the subscription term selected at the time of payment.
- You are solely responsible for the proper cancellation of your account. You may cancel your account without cause at any time by emailing email@example.com. Swingvy may terminate this Agreement at any time in the event you materially breach this Agreement and do not cure such breach within 30 days of written notice (including notice by email) provided by Swingvy. However, in the case of your nonpayment (including in the event when your credit card cannot be charged), Swingvy may suspend your access to the Service upon any such nonpayment and may terminate this Agreement, if such breach is not remedied within 30 days of notice by Swingvy to you. Further, Swingvy may terminate your access to the Service immediately if it determines that you are in violation of Sections 3.1, 3.4 or 11 of this Agreement. For instances other than non-payment or violation under Section 3.1, in the event you cancel your account or this Agreement is terminated by Swingvy or you, SWINGVY will refund to you any prepaid fees covering any period of the term remaining after the date of termination for all subscriptions. However, no refund will be granted for the then-current month. Notice via email by SWINGVY to you will be sent to the email address you have provided to us.
- In the event your account is terminated, other than in instances where it is terminated by Swingvy for your nonpayment or violation of Section 3.1, you will continue to have the ability to download the information provided, inputted or uploaded to the Service by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination. After such 30-day period or if your account is terminated due to your nonpayment or violations or Section 3.1, Swingvy shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited, delete all of your Data in Swingvy’s systems or otherwise in its possession or under its control.
- Swingvy may downgrade, suspend or terminate your access to the Service without liability, following a 30 day notification period, if such action is based on (a) Swingvy’s good faith belief that you have violated any provision of this Agreement (including a failure to make any payment when due), or (b) you do not log in to or otherwise use the Service for a period of 180 days or more if you have a paid account and for a period of 60 days or more if you have a free account.
Modification of this Agreement
The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. Swingvy reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service, or to modify, add, or remove portions of this Agreement at any time by making such modified Agreement available to you. The revised Agreement will be effective immediately upon being made available to you, except that in the event any such modification materially alters your rights hereunder, Swingvy will attempt to notify you directly by sending a message to the email address that you have provided to us. Your use of the Service after modifications to this Agreement become effective constitutes your binding acceptance of such changes. In such case of a material modification, you will be required to affirmatively agree to such modified Agreement. You can also review the most current version of this Agreement at any time at: http://www.swingvy.com/tos. If you are dissatisfied with the terms of the Agreement or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
Usage Rights; Restrictions; Support
- During the Term, Swingvy grants you a limited, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (“Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates Swingvy to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to: (i) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by Swingvy; (ii) use the Service for any fraudulent or inappropriate purpose; (iii) attempt to decipher, decompile, delete, alter or reverse engineer any of the Software; (iv) duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of Swingvy; (v) use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service other than copying or exporting of the Data as contemplated in the Documentation; or (vi) rent, lease, distribute, or resell the Software, or use the Software for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
- Swingvy shall: (i) provide you with basic support in connection with your use of the Service at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (which Swingvy shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Korea Standard Time), or (b) any unavailability caused by circumstances beyond Swingvy’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with Applicable Law.
- Swingvy shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. Swingvy shall not (a) disclose your Data except as compelled by Applicable Law or as you expressly authorize in writing, or (b) access your Data except to provide the Service and prevent or address service or technical problems, or at your request in connection with customer support matters. In the event we are compelled by Applicable Law to disclose your Data, we will provide you with notice thereof, (in advance, if possible) if permitted by Applicable Law.
- If you integrate with Swingvy using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period of time, as-determined solely by Swingvy. If this occurs, Swingvy reserves the right to throttle your API connections, or suspend or terminate your Swingvy account.
Intellectual Property Rights
- As between the parties, Swingvy owns and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights, and (b) transactional and performance data related to your use of the Service. Swingvy may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you.
- You retain all right, title and ownership interest to your Data. Swingvy has no right, title or interest in any personally identifiable information related to your Data.
- You have no obligation to give Swingvy any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent Swingvy receives any Feedback from you, Swingvy may use and include any such Feedback to improve the Services or for any other purpose. Accordingly, if you provide Feedback, you agree that Swingvy shall own all such Feedback and Swingvy and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign, irrevocably, exclusively and on a royalty-free basis, all such Feedback to Swingvy.
- From time to time during the Term, Swingvy may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”), in each case pursuant to a statement of work executed by you and Swingvy. Swingvy shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use during the Term. Swingvy may reuse any Deliverables, provided that such use does not reveal your identity or your confidential information.
During the Term, Swingvy may disclose your name as a customer of Swingvy and/or subscriber of the Service, and you hereby grant Swingvy the right to display your name and logo in its marketing materials and on Swingvy’s public website, in each case in accordance with any branding guidelines you may provide to Swingvy.
Warranties and Liability
- Swingvy represents, warrants, and covenants as follows: (a) the Software will perform substantially in accordance with the technical requirements documents that are generally provided by Swingvy in connection with the Software (“Documentation”); and (b) any professional services performed for you by Swingvy will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, SWINGVY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. SWINGVY DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
- EXCEPT FOR (I) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR (IV) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY SWINGVY FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
- External Breach: In the event of a security breach by anyone other than your employee, contractor or agent, upon discovery of such breach, Swingvy will: (a) initiate remedial actions that are consistent with industry standards; and (b) notify you of the security breach, its nature and scope, the nature and scope of remedial actions Swingvy will undertake, and the timeline within which Swingvy expects to remedy the breach.
- Internal Breach: In the event of a security breach by your employee, contractor or agent, you shall have sole responsibility for initiating remedial actions and shall notify Swingvy immediately of the breach and steps you will take to remedy the breach.
- You agree to indemnify, defend and hold harmless Swingvy, and its affiliates, officers, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or connected with your use of the Software and/or Service in breach of this Agreement.
- Swingvy agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or connected with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall Swingvy have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by Swingvy, and (b) any content, information or data provided by you, your end users, or other third parties.
- A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnified party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim; grant such sole control; and/or provide such cooperation, information and assistance shall not relieve the indemnifying party of its obligations under this Article 8, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
This Agreement shall be governed by and construed in accordance with the substantive laws of Malaysia, without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the courts of Malaysia. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Compliance with Laws; Disclaimers
- Each Party shall comply with all Applicable Law in connection with such party’s activities in relation to this Agreement. The Service can be configured and used in ways that do not comply with Applicable Law and it is your sole responsibility to monitor your employees’ use and your use of the Service to ensure that such use complies with and is in accordance with Applicable Law. In no event shall Swingvy be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service.
- Swingvy does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Law in the jurisdictions in which you use the Service, and any statements made by Swingvy to you shall not constitute legal advice.
- You acknowledge that Swingvy exercises no control over your specific human resource practices implemented using the Service or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Service. Swingvy hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the Service by you and/or your employees, contractors or agents.
- You agree that you will not, directly or indirectly, ship, transfer, transmit, export or re-export, or knowingly permit any of the foregoing with respect to the Service or Software, or any technical information about the Service or Software, to any country, unless the appropriate export license or approval has been obtained.
- You represent and warrant that (a) you are not located in a country that is subject to Malaysia Government embargo, or that has been designated by Malaysia Government as a “terrorist supporting” country; and (b) you are not listed on any Malaysia Government list of prohibited or restricted parties.
- The “eSignature Service” is a service provided by Swingvy for two counterparties (usually a company, herein described as the “sending party,” subscribing to Swingvy’s services and an employee, employee-candidate or contractor) to electronically sign documents (including, but not limited to, agreements, policies, forms, etc.). If you use the eSignature Service office offered by Swingvy, you acknowledge the statements set forth in this Section. Whenever you sign a document using Swingvy’s eSignature Service you affirmatively consent to using electronic signatures via the eSignature Service and consent to conducting electronic business transactions. You also confirm that you are able to access the eSignature Service and the document you are signing electronically. When using the eSignature Service for a particular document, your consent applies only to the matter(s) covered by that particular document.
- You are not required to use the eSignature Service or accept electronic documents provided thereby. If you are an employee, employee-candidate or contractor and you choose to not use the eSignature Service, you may still sign the document manually by notifying the sending party that you are choosing to do so and by obtaining a non-electronic copy of the document from them. Swingvy assumes no responsibility for providing you with a non-electronic version of the document. In the event you are choosing to sign the document manually, do not use the eSignature Service to sign the document or to return the document to the sending party.
- If you have signed a document electronically using the eSignature Service and transmitted it back to the sending party, Swingvy will provide you the opportunity to download and print a paper copy of the document at no charge. If you later withdrawn your consent to using the eSignature Service, please notify the sending party and stop using the eSignature Service. Note that the decision to stop using the eSignature Service after you have already used it does not change the legality of the documents you have previously signed using an electronic signature.
- When counterparties sign a document electronically using the eSignature Service, the rights and duties associated with that document are solely those of the counterparties. Swingvy is not a party to the document and carries no liability or responsibility with respect to the correctness, validity or enforcement of the document; nor does Swingvy have any liability or responsibility with respect to the legal or non-legal aspects of the document or any dispute arising as a result of the document. Swingvy’s sole responsibility is the eSignature Service and customer service associated therewith.
- PLEASE NOTE THAT SWINGVY’S STATEMENTS CONTAINED HEREIN OR ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THE SIGNATURE LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL PURPOSES ONLY; THEY ARE GENERAL IN NATURE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND STATE LAWS GOVERNING ELECTRONIC SIGNATURES, ELECTRONIC SIGNATURES ON CERTAIN TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. SWINGVY HEREBY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH SWINGVY’s ESIGNATURE SERVICE ARE VALID OR ENFORCEABLE UNDER THE LAWS OF MALAYSIA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION. YOU SHOULD CONSULT WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU MAY SIGN ELECTRONICALLY USING SWINGVY’s ESIGNATURE SERVICE.
This Agreement encompass the entire agreement between you and Swingvy with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by an instrument executed by both parties. The failure of Swingvy to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties, and shall not affect the validity and enforceability of any remaining provisions. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement. As used herein, the words “including,” “included” and “includes” mean inclusion without limitation. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without Swingvy’s prior written consent. No part of this Agreement is intended or shall be construed as legal advice. Swingvy shall not be liable for an errors or omissions in the content of this Agreement or for any actions taken in reliance thereon. If you have any questions regarding this Agreement please contact Swingvy at firstname.lastname@example.org.
If you have any questions about the Service or this Agreement, you may email us at email@example.com, or write to us at:
Swingvy Sdn Bhd (1193914-W)
B1-2-1, Solaris Dutamas,
No.1, Jalan Dutamas 1,
50480 Kuala Lumpur, Malaysia