UNITED STATES
Last Updated: February 20, 2026
These License, Service and Product Usage Terms and Conditions (the “Terms and Conditions,” which shall include any and all schedules, addendums, or attachments incorporated herein, as well as all amendments or supplements of the same, and together with the Order Form executed by the parties, constitute this “Agreement”) are entered into and effective as of the “Effective Date” set forth in the Order Form (or the last date set forth in the signature block to the Order Form, if no Effective Date is otherwise provided) (such date, the “Effective Date”) and shall be by and between SwineTech, Inc., a Delaware corporation (“SwineTech”) and the Customer (defined below) . SwineTech and Customer at times are each referred to herein as a “Party” and, collectively, as the “Parties.”
By installing, using, or otherwise accessing the Services (defined below), Customer agrees to comply and be bound by these Terms and Conditions. Customer’s use and access to the Services is conditioned upon legal and appropriate use of the Services, in accordance with the Terms and Conditions. If Customer does not agree to be bound by this Agreement, Customer must not use the Services. This Agreement supersede any previous terms and conditions by and between the parties related to the access or use of the Services. SwineTech reserves all rights including the right to revise, amend, or modify these Terms and Conditions at any time, and any such revisions will be effective as of the “Last Updated” date above. Customer agrees that Customer’s continued use of the Services after the Last Updated date above will constitute Customer’s acceptance of these Terms and Conditions as posted and Customer shall thereafter be bound by these Terms and Conditions, as revised, modified or amended. IT IS Customer’s RESPONSIBILITY TO CHECK SwineTech’s website regularly, as all or any part of these Terms and Conditions may change without notice.
1.1 “Customer,” as used in this Agreement, shall mean the business, organization, or entity named in the Order Form which incorporates these Terms and Conditions by reference.
1.2 “Customer Content” shall mean any and all data, information, images, or other materials or content submitted to, transmitted by, uploaded to, or otherwise made available to the Services, or generated or created using the Services, by Customer, its personnel, and other authorized users or persons acting under their credentials.
1.3 “Installation Services” shall mean those services related solely to the installation of any Products, including installation of Network Equipment.
1.4 “Network Equipment” shall mean that certain equipment the tangible and intangible equipment installed by SwineTech to allow its Products to function on the Customer’s buildings, real estate, and equipment.
1.5 “Order Form” means the written instrument by and between the parties which describes the Services to be provided to Customer by SwineTech.
1.6 “Products” shall that certain web application and software, owned, operated, and distributed by SwineTech under the brand “PigFlow,” as well as those other web applications and software, operated and maintained by SwineTech and sold or licensed to Customer pursuant to an Order Form.
1.7 “Services,” as used in this Agreement, shall mean all services furnished by Company to Customer as set forth in any Order Form or other written purchase order between SwineTech and Customer, that may include, without limitation, the Products, Installation Services, and all services relating to the furnishing, installation, maintenance and operation of the Products and the Network Equipment and other technology contained in the Products.
1.8 “Training” or “Technical Support” shall mean the initial or follow-on training to Customer to ensure safe, reliable and effective usage of the Services in addition to the technical support to address questions or technical issues that may arise out of operating the Services. Together, these services shall at all times be subject to any terms and conditions or terms of use provided to, or made available to, Customer.
2.1 Subject to the terms and conditions set forth in this Agreement and any applicable schedule, Customer is hereby granted a restricted, limited, non-transferable, non-sublicensable, non-exclusive license to use the Services and any Intellectual Property embodied therein (as defined in Section 3.1 below) for Customer’s lawful, internal, commercial purposes in accordance with the terms herein. Any license granted pursuant to this Section 2.1 is subject always to the following terms: (a) such use shall be limited to the use intended by Customer and SwineTech at the time this Agreement was executed and such use shall be in compliance with all Website Policies (defined below); (b) Customer’s rights are personal, non-transferable, non-sub licensable, non-exclusive, which means, without limitation, that Customer may not sell or otherwise transfer the Intellectual Property or the Products to any other person or organization; (c) repairs, alterations, or modifications done by Customer or third-party that are not in accordance with the terms of this Agreement or otherwise authorized by SwineTech in writing shall invalidate warranty and performance specifications of any processing service relating to the Products; (d) access to certain Products may be terminated and this license revoked by SwineTech upon any breach by Customer of this Agreement or any Website Policies or additional terms and conditions that may be set forth in separate schedules, statements, or other documents provided to Customer; (e) Customer’s compliance with any applicable third-party license terms or terms and conditions that are not under the control of SwineTech; (f) Customer shall, when using the Services, only use software or firmware pre-approved by SwineTech or sold by SwineTech pursuant to this Agreement.; and (g) Customer shall not use, modify, or adjust the Network Equipment in any manner that materially interferes with SwineTech’s ability to provide the Services.
2.2 Customer shall not: (a) alter, modify or adapt the Services including, but not limited to, translating or creating derivative works of the Services or any data or content contained therein; (b) distribute, resell, permit access to, publish, commercially exploit, disclose or otherwise transfer or make the Services available to any other person or organization; or (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code or proprietary information included in or related to the Services; or (d) assist, aid, or conspire with any third parties, including but not limited to developers and/or providers of competitive software, to do any of the foregoing, permit and/or assist third parties to perform any of the foregoing, or permit or assist third parties to use information gained from access or use of the Products and/or SwineTech proprietary information to develop a competing service or product with similar features and/or functionality. Customer agrees to use the Services only as expressly permitted by this Agreement and in accordance with all applicable laws, rules and regulations. Customer shall have no rights or license of any kind with respect to the Services other than as set forth in this Agreement. Customer agrees that, upon reasonable notice during the term of this Agreement, SwineTech may, at its sole discretion, request documentation from Customer to confirm that Customer is in compliance with the terms and conditions of this Agreement. If SwineTech is required to bring any action or suit to enforce Customer’s obligations hereunder or to pursue any remedies SwineTech may have for Customer’s violation of this Agreement, SwineTech shall be entitled to recover from Customer, in addition to any other rights and remedies it may have, all reasonable costs and expenses, including without limitation all attorneys’ fees for such suit and/or enforcement.
2.3 Customer agrees to abide by and accept all policies and terms of use posted on SwineTech’s website or within SwineTech’s software applications (which may be posted in publicly available areas or only on certain pages accessible by Customer), including, without limitation, SwineTech’s (i) privacy policy, (ii) the general terms of use contained or provided for therein, (iii) acceptable use policy (https://swinetechnologies.com/pigflow-acceptable-use-policy/) and (iv) all policies regarding use of the Services, fees relating to the Services, and other terms (collectively, the “Website Policies”, each a “Website Policy”). Customer further agrees to abide by and accept all policies and terms posted on SwineTech’s website relating to Customer’s use of the Services or Customer providing of the Services and modifications of any terms and conditions (such Services or statements, the “Policy Statements” and together with the Website Policies, the “Policies”). The Policies may change from time to time in SwineTech’s sole discretion and SwineTech will post such changes on its website or provide such updated Policies to Customer. It is Customer’s sole obligation to read all Policies and updates, amendments, and supplements thereto. Customer agrees that failure to comply with any Policy shall be a material breach of this Agreement, and may result in the immediate termination of Customer’s right to access the website and the Services. Customer’s continued access of the website and the Services constitutes Customer’s assent to any changed terms of any of the Policies.
3.1 SwineTech’s Ownership of Intellectual Property. Unless specifically provided in Section 2 above, SwineTech retains all of its right, title and interest in all now known or hereafter known or developed tangible and intangible intellectual property, including without limitation, all: (a) rights associated with works of authorship throughout the universe, including, but not limited to, copyrights, moral rights and mask works; (b) trademarks, services marks, trade names and any other indicia of origin; (c) technical and non-technical information (regardless of whether such information is in tangible or intangible form) including source code, object code, computer code, data, ideas, concepts, formulae, methods, models, algorithms, techniques, processes, financial business plans and business methods (including any derivatives of any of the foregoing) that derive economic value, actual or potential, from not being generally known to other persons who could obtain economic value from the disclosure or use thereof, and which are the subject of efforts that are reasonable under the circumstances to maintain their secrecy (“Trade Secrets”); (d) patents, pending patent applications, designs, algorithms and other industrial property rights; (e) other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise; (f) the De-Identified Data (defined below); (g) registrations, initial applications, renewals, extensions, continuations, divisions or reissues now or hereafter in force (including any rights in any of the foregoing); and (h) all Proprietary Information (as defined herein) of SwineTech (collectively, “Intellectual Property”). Customer agrees to protect Intellectual Property of SwineTech received by Customer as Confidential Information. Customer agrees not to use, directly or indirectly, under any circumstances, any Intellectually Property of SwineTech for any purpose that is in any way detrimental to SwineTech. Customer covenants not to prejudice or impair the interest of SwineTech in any of its Intellectual Property. At no time shall Customer challenge or assist others to challenge any of SwineTech’s Intellectual Property or the registration thereof.
3.2 Proprietary Information. Customer agrees to hold in confidence all Proprietary Information (defined below) that it receives from SwineTech. Customer will not disclose any of SwineTech’s Proprietary Information to any party or person whatsoever other than to its respective employees or agents who have a need to know such Proprietary Information consistent with the purpose for which it was disclosed. Customer will not use, directly or indirectly, any of SwineTech’s Proprietary Information for any purpose other than the purpose for which it was disclosed. Customer will not use, directly or indirectly, under any circumstances, any of SwineTech’s Proprietary Information for any purpose that is in any way detrimental to SwineTech. This includes, but is not limited to, contracting with SwineTech’s employees, consultants, contractors, vendors or partners to provide services to Customer similar to those provided to Customer by SwineTech. Customer shall take reasonable precautions to protect the confidentiality and value of SwineTech’s Proprietary Information, including measures to prevent loss, theft and misuse. Customer shall immediately give notice to SwineTech of any unauthorized use or disclosure of SwineTech’s Proprietary Information. Customer agrees to assist SwineTech in remedying any unauthorized use or disclosure of Proprietary Information caused by such Customer. Customer acknowledges expressly that each and every one of its employees, contractors and agents are bound to the terms and conditions of this Section 3.2.
3.3 Definition of Proprietary Information. Proprietary Information means Confidential Information (defined below) and Trade Secrets (defined above), whether in written, oral, electronic or other form, furnished, transmitted to, observed or obtained by one of the parties. The following information, all as reasonably substantiated by documentation, however, is not Proprietary Information and Customer is not restricted as to its use or disclosure: (a) information already in the possession of, or already known to, Customer as of the Effective Date, and not under any other obligations of confidentiality due to any other agreements between the Parties; (b) information that enters the public domain after the Effective Date, or which, after such disclosure, enters the public domain through no fault of Customer; (c) information lawfully furnished or disclosed to Customer by a non-party to this Agreement without any obligation of confidentiality; (d) information independently developed by any Party without use of any Proprietary or Confidential Information; or (e) information that is explicitly approved for release by SwineTech.
3.4 Definition of Confidential Information. Confidential Information means information identified on, in or constituting: all strategic and development plans, financial information, results of the Services and Products, business plans, information about parent, subsidiaries or sister companies, co-developer identities, data, business records, client lists, identity of vendors and partners, policy information, personally identifiable information, personal financial information or personal health information (as those terms are defined by governing law), product designs, test data, project records, market reports, investor information, know-how, discoveries, ideas, concepts, specifications, models, diagrams, methodologies, research, technical and statistical data, drawings, models, flow charts, work-flow, marketing, pricing, selling, distribution, database descriptions, software code, source code, object code, Intellectual Property, and any and all other tangible or intangible information, other than Trade Secrets, encompassed in any medium, which may be disclosed, whether or not in writing, whether or not marked as “Confidential” or “Proprietary” by a Party or to which a Party may be provided access to by the other Party in accordance with this Agreement, or which is generated or learned as a result of or in connection with the Services and is not generally available to the public.
3.5 Return of Proprietary Information. Upon written request of the disclosing Party, the receiving Party shall promptly return or destroy (as directed by SwineTech) all Proprietary Information received from such disclosing Party, including all copies thereof. Upon the request of disclosing Party, the receiving Party shall furnish to SwineTech an affidavit providing assurances as to the return or destruction of such Party’s Proprietary Information.
3.6 Disclosure Required by Law. A disclosure of Proprietary Information in response to a valid order by a court or other governmental body or otherwise required by law is not considered to be a breach of this Agreement or a waiver of confidentiality for other purposes. Before any such disclosure, such Party shall provide prompt written notice to the party that disclosed the Proprietary Information and reasonably cooperate with SwineTech in seeking a protective order or preventing disclosure.
3.7 Ownership. Except as specifically provided otherwise in this Agreement, all materials, including Services or Proprietary Information, transmitted from disclosing Party to the receiving Party, are to remain the sole and exclusive property of the disclosing Party. Except for the licenses or ownership rights granted pursuant to this Agreement, this Agreement and transmission or disclosure of any Proprietary Information from the disclosing Party to the receiving Party does not grant the receiving Party a license or ownership of any type.
3.8 Survival of Obligations. All obligations and restrictions of confidentiality and ownership of Propriety Information under this Agreement are to survive the termination of this Agreement.
3.9 Responsibility for Affiliates and Representatives. The receiving Party of Proprietary Information is solely responsible for any breach of this Agreement by its representatives including, without limitation, any improper use or disclosure by its representatives of the disclosing Party’s Proprietary Information. A receiving Party may disclose Proprietary Information to its representatives who in such Party’s reasonable judgment have the need to know such information in connection with this Agreement. Each Party shall inform its representatives of the confidential nature of such Proprietary Information, shall direct them to hold Proprietary Information in strict confidence, shall take all reasonable precautions to prevent improper use of Proprietary Information by them, and shall be responsible for any breaches by them of the terms found in this Agreement.
3.10 Certain Rights Granted to SwineTech. Customer authorizes and grants to SwineTech a right and license to use Customer’s name and logo on its marketing and promotional material, including on its website and customer lists. Customer grants SwineTech the right to make certain press releases available to the general public regarding the Services provided by SwineTech to Customer. Customer acknowledges and agrees that SwineTech may collect and retain aggregate non-identifiable data derived from performance of Products and Services in accordance with SwineTech’s privacy policy and terms of use.
4.1 Price and Payment Terms. Customer shall pay the amounts set forth on the Order Form for the Products, Network Equipment, and all Services (together, the “Purchase Price”). Notwithstanding the foregoing terms provided for in the Order Form: (A) For any Subscription Customer: To the extent the purchase of any Deliverable is by a subscription, the Purchase Price shall include the “Monthly Recurring Charges” and the “Other Charges,” as set out on the Order Form. The Purchase Price shall be due and payable according to the terms of the Order Form. If no payment terms are provided on the Order Form, then (A) the Monthly Recurring Payment shall be due and payable on the last day of the month in which the Products are delivered to the address set forth on the Order Form and monthly thereafter on the last day of each month until the expiration of the Initial Term (or any Subscription Renewal Term, each as defined below); (B) the Other Charges shall be due and payable within thirty (30) days of delivery of the Products and Network Equipment to the address set forth on the Order Form and performance of the Installation Services described on the Order Form (if any). Unless otherwise provided on the Order Form, Customer shall be responsible for expenses incurred by SwineTech (including travel and lodging) in providing the Services described on the Order Form; (B) For any Non-Subscription Customer: To the extent the purchase of any Deliverable does not include any subscription, Customer shall pay the amounts set forth on the Order Form for the Services. The Purchase Price shall be due and payable according to the terms of the Order Form. If no payment terms are provided on the Order Form, then the Purchase Price for (A) the Products and initial set-up Services (if any) shall be due and payable within thirty (30) days of delivery of the Products to the address set forth on the Order Form and performance of the initial set-up Services described on the Order Form (if any) and (B) all other Services shall be due and payable within thirty (30) days of the date of such invoice. Unless otherwise provided on the Order Form, Customer shall be responsible for expenses incurred by SwineTech (including travel and lodging) in providing the Services described on the Order Form.
Unless specifically provided otherwise on the Order Form or on an order form hereafter signed by the Parties, SwineTech shall invoice Customer for any additional (i.e., not described on the Order Form) Services requested by and delivered to Customer (including reimbursement of expenses reasonably incurred, which shall include, without limitation, reasonable expenses for travel and lodging) and Customer shall pay such invoices within thirty (30) days of the date of such invoice. Customer shall pay interest computed at the rate equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law, on any amounts due hereunder that are remitted more than thirty (30) days late. Customer shall be responsible for all costs and expenses, including court costs and attorneys’ fees, incurred by SwineTech in collecting any fees owed to it under this Section 4.1 or enforcing its rights under this Agreement.
Unless specifically provided otherwise in the Order Form, SwineTech shall have the right, to increase the amount of any charges (including Monthly Recurring Payments) to account for (i) general economic conditions, including without limitation inflationary adjustments, and (ii) specific matters that have affected SwineTech and its business operations that were not caused solely by SwineTech.
4.2 Taxes. Customer shall be responsible for all taxes applicable to Customer and arising as a result of this Agreement, other than taxes based on SwineTech’s income. The prices provided to Customer from SwineTech do not include any taxes associated with the Services, however designated.
4.3 Disputes of Collected Fees of Invoiced Amounts. To the extent Customer disputes any amounts due and owing on any invoice provided to Customer, Customer shall dispute such amounts within thirty (30) days of the invoice date and to the extent Customer does not meet such deadline date to dispute any charges or fees, Customer shall have waived all rights to contest such fees and charges.
5.1 Term. Unless specifically provided otherwise in the Order Form, the initial term of this Agreement (the “Initial Term”) shall be as follows: (A) For any Services supplied via a subscription, the Initial Term will commence on the Effective Date and will terminate on the second annual anniversary of the Effective Date. Following the expiration of the Initial Term, the Agreement will automatically renew for successive one (1) year terms (each, a “Subscription Renewal Term”), unless either party provides notice to the other party of its intent not to renew the Agreement at least thirty (30) days prior to the end of the Initial Term or Subscription Renewal Term; or (B) For any Services supplied without a subscription, the Initial Term will commence on the Effective Date and will terminate on the date that all Services to be performed by SwineTech, as described in the Order Form, have been performed.
5.2 Termination. Except for termination by SwineTech pursuant to Section 10.1 hereto, either party may terminate this Agreement by giving thirty (30) days’ written notice to the other party. Furthermore, (A) For any Services supplied via a subscription, to the extent Customer terminates this Agreement pursuant to this section, such Customer hereby acknowledges and agrees to pay a one-time termination fee equal to seventy-five percent (75%) of the remaining Recurring Monthly Payments that were otherwise due until the end of Initial Term or any Subscription Renewal Term (the “Termination Fee”), with such Termination Fee being due and payable as of the termination date; and (B) For any Services supplied without a subscription, to the extent Customer terminates this Agreement pursuant to this section, such Customer acknowledges and agrees that certain termination fees may be applicable to any termination of, or reduction in use of, the Services or Products and payable by Customer. Such termination fees, if any, will be determined by SwineTech, in its sole discretion at the time of termination by Customer.
5.3 Return of Products. Upon the expiration or termination of this Agreement, such Customer will promptly return to SwineTech all Products and Network Equipment delivered to Customer by SwineTech under this Agreement that were not purchased by Customer.
6.1 SwineTech has no obligation to retain any Customer Content after the termination of this Agreement, for whatever reason. Unless specifically provided otherwise in this Agreement or the Website Policies, SwineTech shall be entitled to irretrievably delete Customer Content at any time after thirty (30) days following the termination of this Agreement, and SwineTech shall have no obligation to notify Customer of its intention to delete or its deletion of any or all of Customer Content.
6.2 The Parties hereby agree that the terms and conditions of the Data Processing Addendum located at www.swinetechnologies.com are hereby incorporated by reference (“DPA”). In the event of a conflict between these Terms and Conditions and the terms and conditions of the DPA, the terms and conditions of the DPA control.
6.3 Customer hereby grants to SwineTech a non-exclusive, worldwide, transferable, sublicensable right and license to Process (as defined in the DPA) Customer Content for the purposes of: (a) providing the Services and making the Services available for use by Customer; (b) monitoring and ensuring the Services for safety, security, and compliance purposes; (c) creating datasets or data that is de-identified or anonymized in accordance with applicable laws (“De-Identified Data”); (d) exercising SwineTech’s rights or obligations hereunder; or (e) complying with any requirements or instructions of any laws, rules, regulations, law enforcement agencies, courts, arbiters, or regulatory authorities. Customer shall have no rights to any future uses or value derived by Company from the Customer Content.
6.4 Customer specifically acknowledges and agrees that SwineTech has no obligation to retain or collect any Customer Content as part of Customer’s use of the Products and Services.
6.5 Customer acknowledges and agrees that it is solely responsible for all data entered by its agents and employees when using the Services. SwineTech shall have no obligation to verify the accuracy of such data. SwineTech shall have no obligation to verify the accuracy of such data or the aggregate information relating to such data. SwineTech provides no representation or warranty regarding the data’s accuracy or ability to be used for audit or compliance purposes. Customer shall use such data at its own risk.
Customer represents, warrants, and covenants (each as applicable) to SwineTech that: (A) This Agreement and performance by Customer of its obligations hereunder shall not (i) violate any law, rule or regulation applicable to Customer or (ii) be in breach of, or constitute a default under, the provisions of any agreement, instrument or undertaking by which Customer is bound; (B) To the extent Customer or its staff receives any Training, Customer covenants and agrees that it will ensure all staff using the Services are included in such Training, and Customer and its agents shall use the Services as directed by SwineTech; (C) Customer shall provide SwineTech with all necessary cooperation in relation to this Agreement and all necessary access to such information as may be required by SwineTech in order to render the Services or to provide the Services; (D) Customer shall carry out all of Customer’s responsibilities set out in this Agreement in a timely and efficient manner, and in the event of any delays in Customer’s provision of such assistance as agreed by the Parties, SwineTech may adjust any agreed level of Services as may be reasonably necessary; (E) Customer shall be solely responsible for the results obtained from its use of the Services; (F) Customer shall only use the Products purchased from SwineTech, or received from SwineTech, with hardware, software, or other products that are either purchased directly from SwineTech, or a supplier or vendor that SwineTech pre-approves in writing, which approval shall be at SwineTech’s sole discretion; (G) Customer shall ensure that appropriate biosecurity protocols are observed at all times, and that all Services provided by SwineTech will be used solely by Customer; (H) Customer it is duly organized and validly existing under the laws of its state of incorporation or formation, has the necessary authority, licenses and other permissions to conduct the business in which it is currently engaged and is in compliance with all applicable laws. Customer further represents and warrants that it has the legal capacity to agree to the terms of this Agreement, perform its obligations hereunder, has obtained and shall maintain all necessary authorizations or registrations from appropriate authorities to carry out the activities contemplated in this Agreement, and entering into this Agreement will not violate any applicable law or regulation; (I) Customer and its affiliates that they shall promptly notify SwineTech of any restrictions imposed by law on the use of the Services by Customer or use of the Customer Content by SwineTech in accordance with the terms of this Agreement; (J) Customer, or its employees or agents, shall enter all data correctly when using the Services; and (K) Customer shall not, and shall ensure its affiliates do not, disparage SwineTech or any of its directors, officers, agents or executives or otherwise take any action which could reasonably be expected to adversely affect the reputation of SwineTech or its products or the personal or professional reputation of any of its directors, officers, agents or employees.
SwineTech represents and warrants to Customer that: (A) This Agreement and performance by SwineTech of its obligations hereunder shall not (i) violate any law, rule or regulation applicable to SwineTech or (ii) be in breach of, or constitute a default under, the provisions of any agreement, instrument or undertaking by which SwineTech is bound; (B) This Agreement, when signed, is valid, binding, and enforceable against SwineTech; (C) SwineTech will offer Customer an email address to send support inquiries for the Services. Support will be provided according to the terms provided in the service level agreement or commitments (a copy of which is attached to this Agreement as Addendum A and may be attached to any Order Form). From time to time, SwineTech may perform scheduled and/or unscheduled maintenance to correct, modify, or enhance the Products. During such maintenance, all or selected portions of the Products may be unavailable. SwineTech will notify Customer of any scheduled maintenance and work in good faith to ensure SwineTech Product(s) is/are available. Except as specifically provided for in this Agreement, SwineTech will not be held liable for any downtime of SwineTech Product; and (D) The Services shall be performed and/or provided in a diligent, timely, technically competent and professional manner.
Customer agrees to indemnify and hold harmless SwineTech, its employees, contractors, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that SwineTech may sustain or incur as a result of any third-party claim against SwineTech based upon negligence, breach of warranty, strict liability in contract, or any other theory of liability, arising out of, directly or indirectly, (i) by reason of Customer’s failure to perform its obligations contained herein, (ii) the Customer Content, or (iii) Customer’s gross negligence or intentional misconduct, or violation of applicable laws.
SwineTech agrees to indemnify and hold harmless Customer, its employees, contractors, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Customer may sustain or incur as a result of any third-party claim against Customer based upon negligence, breach of warranty, strict liability in contract, or any other theory of liability, arising out of, directly or indirectly, (i) by reason of SwineTech’s failure to perform its obligations contained herein, or (ii) SwineTech’s gross negligence or intentional misconduct.
10.1 SwineTech warrants to Customer (which warranty is not transferable), that the Network Equipment shall be free from material defects in the material and workmanship under normal use and service, in accordance with this Agreement, for a period of ninety (90) days (the “Warranty Period”) from the date of original sale or transfer from SwineTech to Customer. This warranty shall not apply if Customer uses the Network Equipment in violation of this Agreement, in violation with directions or guidance provided by SwineTech, or if the Network Equipment has been subject to accident, negligence, abuse, misuse, or criminal acts. Customer’s sole and exclusive remedy for a breach of this limited warranty by SwineTech shall be for SwineTech to repair or replace (as determined by SwineTech), at no charge to Customer, the Network Equipment in breach of such warranty; provided however, in the event of such a breach of warranty SwineTech may, in its sole discretion, elect to terminate this Agreement immediately in which event SwineTech shall return to Customer an amount equal to the amount paid by Customer to SwineTech during the Warranty Period for such Network Equipment and as a condition of receiving such payment Customer shall return to SwineTech all Network Equipment delivered to Customer by SwineTech under this Agreement.
EXCEPT FOR THE REMEDY SPECIFICALLY SET FORTH IN THIS SECTION, CUSTOMER HEREBY WAIVES ANY AND ALL OTHER RIGHTS AND REMEDIES THAT CUSTOMER MAY OTHERWISE BE ENTITLED TO AT LAW OR IN EQUITY UNDER ANY THEORY OF LIABILITY ARISING FROM A BREACH OF SAID LIMITED WARRANTY.
10.2 EXCEPT FOR THE SPECIFIC REPRESENTATIONS OF SWINETECH CONTAINED HEREIN, THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND NEITHER SWINETECH, NOR ITS AFFILIATES MAKE ANY REPRESENTATION OR WARRANTY OF ANY OTHER KIND EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, OR THE ACCURACY OR COMPLETENESS THEREOF, OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF OR ANY OTHER MATTER. SWINETECH EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, SECURITY, COMPATIBILITY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SWINETECH DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR APPLICATIONS. FOR THE AVOIDANCE OF DOUBT, SWINETECH DISCLAIMS ANY WARRANTIES RELATING TO THE ACCURACY OF ANY DATA THAT RELIES ON INPUTS FROM CUSTOMER OR CUSTOMERS EMPLOYEES OR AGENTS.
10.3 IN NO EVENT SHALL SWINETECH OR ITS AFFILILATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR REVENUES OR OTHER ECONOMIC LOSS OF CUSTOMER OR ANY THIRD PARTY), WHETHER IN TORT, CONTRACT OR OTHERWISE, AND WHETHER OR NOT SWINETECH OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO SWINETECH’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN ITS PROVISION OF THE SERVICES SWINETECH’S TOTAL LIABILITY HEREUNDER UNDER ANY OTHER THEORY OF LIABILITY IS LIMITED TO THE AGGREGATE AMOUNT PAID TO SWINETECH BY CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE INCIDENT FROM WHICH THE CLAIM(S) AROSE. TO THE EXTENT A CLAIM ARISES OUT OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN SWINETECH’S PROVISION OF THE SERVICES, SWINETECH’S TOTAL LIABILITY HEREUNDER UNDER ANY OTHER THEORY OF LIABILITY IS LIMITED TO THE AGGREGATE AMOUNT PAID TO SWINETECH BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT FROM WHICH THE CLAIM(S) AROSE.
SWINETECH DOES NOT GUARANTEE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY, THAT ANY APPLICATION OR SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SWINETECH WILL CORRECT ALL SERVICES ERRORS (UNLESS SPECIFICALLY PROVIDED HEREIN). CUSTOMER ACKNOWLEDGES THAT SWINETECH DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SWINETECH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IF ANY OF THE LIMITATIONS OR EXCLUSIONS ABOVE ARE PROHIBITED BY APPLICABLE LAWS, SUCH PROHIBITED LIMITATIONS OR EXCLUSIONS SHALL BE DEEMED TO NOT APPLY WITHOUT AFFECTING THE OTHER LIMITATIONS AND EXCLUSIONS.
10.4 Equitable Relief. Customer acknowledges and agrees that a breach of this Agreement may cause other irreparable harm on SwineTech without an adequate remedy at law and hereby agrees that SwineTech may seek equitable relief, including without limitation, temporary or permanent injunctions and other relief to limit the effect of any breach.
10.5 Time Limit on Claims. NO ACTION ON THIS AGREEMENT, EXCEPT FOR PAYMENT OWED BY CUSTOMER TO SWINETECH, MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE INCIDENT OCCURS.
10.6 Essential Purpose. THE FOREGOING PROVISIONS OF THIS SECTION 10 ARE INTENDED AS A COMPLETE ALLOCATION OF THE RISKS BETWEEN THE PARTIES. BECAUSE THE BARGAIN STRUCK AND THE PRICE PAID REFLECT SUCH ALLOCATION THIS LIMITATION UPON REMEDIES WILL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.1 Assignment. This Agreement shall not be assigned or transferred by Customer without prior written consent of SwineTech, and any attempt by Customer to so assign or transfer this Agreement without such written consent shall be null and void. This Agreement shall be valid and binding on the parties hereto and their successors and permitted assigns.
11.2 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Iowa without regard to its conflict or choice of laws principles. Any action brought in connection with this Agreement, its terms or the enforcement thereof shall be brought solely in the Federal or State courts located in Cedar Rapids, Iowa and each Party consents to the personal jurisdiction and venue therein.
11.3 Notices. All notices given under this Agreement must be in writing, sent to: SwineTech, Inc.; Attn: President; 222 3rd Ave SE, Suite 400-22
Cedar Rapids, IA 52401; E-mail: mrooda@swinetechnologies.com
If to Customer, to the address provided under the Order Form; or to such other address as a Party may designate in writing to the other Party, by certified mail (return receipt requested), overnight courier, personal delivery, or email to the other parties hereto.
11.4 Survival. Any provision of this Agreement which, by its nature, would survive termination of this Agreement shall survive any such termination of this Agreement, including, without limitation, Sections 2 through 11.
11.5 Force Majeure. SwineTech shall not be responsible for any delay or failure in performance of its obligations under this Agreement resulting from acts beyond the control of SwineTech, including but not limited to, any act of God, act of governmental authority (including without limitation changes in trade policy), act of public enemy, computer or system failure, or due to war, terrorism, riot, fire, flood, civil commotion, pandemic, insurrection, labor difficulty (including, without limitation any strike, or other work stoppage or slowdown), or severe or adverse weather conditions.
11.6 Miscellaneous. This Agreement, together with the Order Form, or any additional order form, any pricing sheets, and any other Services provided to Customer pursuant to the terms of this Agreement or as part of SwineTech providing the Services, supersedes all prior agreements and understandings, and constitutes the complete agreement and understanding between the Parties with respect to the subject matter hereof. The Parties are independent contractors, and nothing in this Agreement will be construed to constitute or appoint any party as the agent, partner, joint venturer or representative of the other Party for any purpose whatsoever, or to grant to any party any right or authority to assume or create any obligation, express or implied, for or on behalf of any other, or to bind any other in any way or manner whatsoever. Any forbearance or delay on the part of a Party in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of a right to enforce same for such occurrence or any future occurrence. No other party is intended, or shall be deemed, to be a beneficiary of any provision of this Agreement. This Agreement may be executed in counterparts, which counterparts, taken together, shall constitute one agreement and each Party hereto may execute this Agreement by signing such counterpart.
Addendum A
Service Level Addendum:
SERVICE LEVEL AGREEMENT
