LICENSE, SERVICE AND PRODUCT USAGE TERMS AND CONDITIONS

These License, Service and Product Usage Terms and Conditions (the “Agreement” or “Terms and Conditions,” which shall include any and all schedules, addendums, or attachments incorporated herein, as well as all amendments or supplements of such documents and the Agreement) is entered into and effective as of date set forth in the signature block to or as provided in the Order Form to which this Agreement is attached (such date, the “Effective Date”) and shall be by and between SwineTech, Inc., a Delaware corporation (“SwineTech” or “Company”) and the third-party (“Customer”) set forth in the Order Form (“Order Form”). 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, 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. If Customer does not agree to be bound by this Policy, Customer must not use the Services. These Terms and Conditions supersede any previous Terms and Conditions.  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 ten (10) days after posting on SwineTech’s website at https://swinetechnologies.com/legal/. Customer agrees that Customer’s continued use of the Services after the effective date of any such revision, amendment or modification will constitute Customer’s acceptance thereof and YOU shall thereafter be bound by the terms of this 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 this Policy may change without notice.

1. Definition of Services, Products, and Customers

1.1   “Customer,” as used in this Agreement, shall mean the third-party signing onto the Order Form to which these Terms and Conditions are attached.

1.2   “Deliverables” shall mean the Services, Products, and Network Equipment provided by SwineTech to Customer.

1.3   “Installation Services” shall mean those services related solely to the installation of any Products or Software, 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 Services and Products to function on the Customer’s buildings, real estate, and equipment.

1.5   “PigFlow” shall mean that certain web application and software, operated and maintained by SwineTech.

1.6   “Repair” shall mean the repair of the Products either within or outside of warranty period described within this agreement. Such services, whether paid for or provided complimentary due to warranty issues are governed by the terms and conditions within this document.

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 Company and Customer, that may include, without limitation, the Software Subscription Services, Installation Services, and all services relating to the installation, maintenance and operation of the Products and the software and other technology contained in the Products.

1.8   “Software Products” or “Products” shall mean those certain web applications and software, operated and maintained by SwineTech and sold or licensed to Customer pursuant to an Order Form, including without limitation PigFlow.

1.9   “Submitted Content” shall mean that certain data and content, including without limitation, certain data processed by the Products or Services as part of operating the Products and Services.

1.10   “Training” or “Technical Support” or “Onboarding” shall mean the initial or follow-on training to Customer to ensure safe, reliable and effective usage of the Deliverables in addition to the technical support to address questions or technical issues that may arise out of operating the Products and 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. General Use; Use Restrictions; Company Policies.

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-exclusive royalty-free license to use the Intellectual Property (as defined in Section 3.1 below) contained in or necessary for the intended use of the Products. 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 Company at the time this Agreement was executed and such use shall be in compliance with all Website Policies; (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; all use of the Deliverables may be subject to certain third-party license terms or terms and conditions that are not under the control of SwineTech; (f) Customer shall, when using the Deliverables, only use software or firmware pre-approved by the Company or sold by the Company pursuant to this Agreement.; and (g) Customer shall not use, modify, or adjust the Network Equipment in any manner that materially interferes with the Company’s ability to provide the Deliverables.

2.2   Customer shall not: (a) alter, modify or adapt the Deliverables including, but not limited to, translating or creating derivative works of the Deliverables or any data or content contained therein; (b) distribute, resell, permit access to, publish, commercially exploit, disclose or otherwise transfer or make the Deliverables 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 Deliverables; 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 Deliverables 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 Deliverables 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   Company Policies. Customer agrees to abide by and accept all policies and terms of use posted on SwineTech’s website or within the Company’s software applications (which may be posted in publicly available areas or only on certain pages accessible by Customer), including, without limitation, the Company’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 Deliverables, fees relating to the Deliverables, 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 the Company’s website relating to Customer’s use of the Deliverables or Customer providing of the Deliverables and modifications of any terms and conditions (such Deliverables 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 Deliverables.  Customer’s continued access of the website and the Deliverables constitutes Customer’s assent to any changed terms of any of the Policies.

3. Proprietary and Confidential Information

3.1   Company’s Ownership of Intellectual Property.  Unless specifically provided in Section 2 above, Company 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, 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) registrations, initial applications, renewals, extensions, continuations, divisions or reissues now or hereafter in force (including any rights in any of the foregoing); and (g) all Proprietary Information (as defined herein) of the Company (collectively, “Intellectual Property”).  Customer agrees to protect Intellectual Property of Company received by Customer as Confidential Information. Customer agrees not to use, directly or indirectly, under any circumstances, any Intellectually Property of the Company for any purpose that is in any way detrimental to the Company. Customer covenants not to prejudice or impair the interest of Company in any of its Intellectual Property.  At no time shall Customer challenge or assist others to challenge any of Company’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 Company.  Customer will not disclose any of Company’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 Company’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 Company’s Proprietary Information for any purpose that is in any way detrimental to Company.  This includes, but is not limited to, contracting with Company’s employees, consultants, contractors, vendors or partners to provide services to Customer similar to those provided to Customer by Company.  Customer shall take reasonable precautions to protect the confidentiality and value of Company’s Proprietary Information, including measures to prevent loss, theft and misuse. Customer shall immediately give notice to Company of any unauthorized use or disclosure of Company’s Proprietary Information.  Customer agrees to assist Company 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 Company.

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 Deliverables 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 Company) all Proprietary Information received from such disclosing Party, including all copies thereof.  Upon the request of disclosing Party, the receiving Party shall furnish to Company 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 Company in seeking a protective order or preventing disclosure.

3.7   Ownership.  Except as specifically provided otherwise in this Agreement, all materials, including Deliverables 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 Company.  Customer authorizes and grants to Company 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 Company the right to make certain press releases available to the general public regarding the Deliverables provided by Company to Customer. Customer acknowledges and agrees that Company may collect and retain aggregate non-identifiable data derived from performance of Products and Services in accordance with Company’s privacy policy and terms of use. Customer acknowledges and agrees that, except as specifically provided in this Agreement, Company owns the Deliverables, and shall have a non-exclusive, unrestricted, irrevocable, transferable, worldwide, and perpetual license to all Submitted Content.

4. Price and Payment Terms; Taxes; Disputes

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 Company (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 Deliverables.  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 Company (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, Company shall invoice Customer for any additional (i.e., not described on the Order Form) Deliverables 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 Company 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, Company 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 Company and its business operations that were not caused solely by Company.

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 Deliverables, 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. Termination.

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 Deliverables 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 Deliverables 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 Company, as described in the Order Form, have been performed.

5.2   Termination. Except for termination by Company 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 Deliverables 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 Deliverables 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 the Company, 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 Company all Products and Network Equipment delivered to Customer by Company under this Agreement that were not purchased by Customer.

6. Customer Data

6.1   SwineTech has no obligation to retain any of Customer’s data that has been provided by Customer to SwineTech or generated through Customer’s use of the Deliverables (“Customer Data”) after the termination of this Agreement, for whatever reason. Unless specifically provided otherwise in this Agreement or the Website Policies, Company shall be entitled to irretrievably delete Customer Data 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 Data.

6.2   Customer hereby grants and assigns to SwineTech, a worldwide, royalty-free, irrevocable, perpetual and non-exclusive license, with the right to sublicense and transfer, the rights to use and disclose the Customer Data on an anonymous basis in any manner SwineTech chooses, and to display, perform, copy, make, have made, use, sell, and otherwise dispose of any SwineTech’s products embodying the Customer Data in any manner without obligation to Customer. Customer shall have no rights to any future uses or value derived by Company from the Customer Data.

6.3   Customer specifically acknowledges and agrees that Company has no obligation to retain or collect any Customer Data as part of Customer’s use of the Products and Services.

6.4   Customer acknowledges and agrees that it is solely responsible for all data entered by its agents and employees when using the Deliverables. Company shall have no obligation to verify the accuracy of such data. Company shall have no obligation to verify the accuracy of such data or the aggregate information relating to such data. Company 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.

7. Customer Representations and Warranties and Covenants

Customer represents, warrants, and covenants (each as applicable) to Company 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 Deliverables are included in such Training, and Customer and its agents shall use the Deliverables as directed by the Company; (C) Customer shall provide Company with all necessary cooperation in relation to this Agreement and all necessary access to such information as may be required by Company in order to render the Services or to provide the Deliverables; (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, Company may adjust any agreed level of Deliverables as may be reasonably necessary; (E) Customer shall be solely responsible for the results obtained from its use of the Deliverables; (F) Customer shall only use the Products purchased from Company, or received from Company, with hardware, software, or other products that are either purchased directly from Company, or a supplier or vendor that Company pre-approves in writing, which approval shall be at the Company’s sole discretion; (G) Customer shall ensure that appropriate biosecurity protocols are observed at all times, and that all Deliverables provided by Company 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 the Company of any restrictions imposed by law on the use of the Deliverables by Customer or use of the Submitted Content by the Company in accordance with the terms of this Agreement; (J) Customer, or its employees or agents, shall enter all data correctly when using the Deliverables; and (K) Customer shall not, and shall ensure its affiliates do not, disparage Company 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 Company or its products or the personal or professional reputation of any of its directors, officers, agents or employees.

8. Company Representations and Warranties

Company represents and warrants to Customer that: (A) This Agreement and performance by Company of its obligations hereunder shall not (i) violate any law, rule or regulation applicable to Company or (ii) be in breach of, or constitute a default under, the provisions of any agreement, instrument or undertaking by which Company is bound; (B) This Agreement, when signed, is valid, binding, and enforceable against Company; (C)  SwineTech will offer Customer an email address to send support inquiries for the Deliverables. 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 the SwineTech Product(s) is/are available. Except as specifically provided for in this Agreement, SwineTech will not be held liable for any downtime of the SwineTech Product; and (D) The Deliverables shall be performed and/or provided in a diligent, timely, technically competent and professional manner.

9. Indemnity

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, or (iii) Customer’s gross negligence or intentional misconduct.

Company 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 Company’s failure to perform its obligations contained herein, or (iii) Company’s gross negligence or intentional misconduct.

10. Limited Warranty; Disclaimers; Limitation of Liability; Remedies

10.1   Company 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 Company 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 Company shall be for Company to repair or replace (as determined by Company), at no charge to Customer, the Network Equipment in breach of such warranty; provided however, in the event of such a breach of warranty Company may, in its sole discretion, elect to terminate this Agreement immediately in which event Company shall return to Customer an amount equal to the amount paid by Customer to Company  during the Warranty Period for such Network Equipment and as a condition of receiving such payment Customer shall return to Company all Network Equipment delivered to Customer by Company 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 DELIVERABLES 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 DELIVERABLES, 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 DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE DELIVERABLES 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 DELIVERABLES SWINETECH’S TOTAL LIABILITY HEREUNDER UNDER ANY OTHER THEORY OF LIABILITY IS LIMITED TO THE AGGREGATE AMOUNT PAID TO COMPANY 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 DELIVERABLES, SWINETECH’S TOTAL LIABILITY HEREUNDER UNDER ANY OTHER THEORY OF LIABILITY IS LIMITED TO THE AGGREGATE AMOUNT PAID TO COMPANY 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.

10.4   Equitable Relief.  Customer acknowledges and agrees that a breach of this Agreement may cause other irreparable harm on Company without an adequate remedy at law and hereby agrees that Company 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 COMPANY, 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. Miscellaneous Provisions

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 Deliverables provided to Customer pursuant to the terms of this Agreement or as part of Company 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.  No amendment or other modification to this Agreement shall be valid or binding unless agreed to in writing and signed by a duly authorized officer of both Parties.  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

1. Definitions. For the purposes of this Service Level Agreement (“SLA”), the following definitions shall apply:
   
   1. “Availability” or “Available” means that the Software Product is available for use and properly functioning for use in accordance with the Terms and Conditions and Order Form to which this SLA is attached.
   2. “Downtime” means the total number of minutes in a given month that the Software Product is not Available.
   3. “Scheduled Maintenance” means the total number of minutes in a given month for a planned, defined, and scheduled period of time during which SwineTech performs routine maintenance on the Software Product. SwineTech will endeavor to give Customer at least two (2) business days prior written notice (email to suffice) of any Scheduled Maintenance, including anticipated duration of the outage.
2. Uptime Requirement.
   
   1. SwineTech will make commercially reasonable efforts to ensure that the Software Product will be Available at least 99.5% of the time (“Uptime Requirement”) as measured over each calendar month during the Term.
   2. The following shall be excluded from any calculation to determine whether SwineTech has complied with the Uptime Requirement: (i) Scheduled Maintenance; (ii) Downtime resulting from any acts or omissions by Customer that are not in accordance with the Terms and Conditions and Order Form, including without limitation, any negligence, willful misconduct or use of the Software Product in breach of the Terms and Conditions and Order Form; (iii) delays or outages caused by any third party platforms or services; (iv) any restrictions imposed by any such third party platforms or services; and (v) Downtime resulting from a force majeure, as set forth in Terms and Conditions.
3. Service Level Disruption. SwineTech will inform Customer by email (or other prompt means of communication if email is unavailable) of any service disruption of a significant nature (i.e. greater than 8 hours). SwineTech will make commercially reasonable efforts to restore service as soon as practicable and inform Customer once service has been restored. All phone calls, emails, and requests for help will be addressed Monday – Friday, 9:00A ET – 7:00P ET. All critical system-wide issues related to the core Software Product will be addressed 24-hours per day, 7-days per week, 365 days per year. Weekend support via email is available during system-wide issues; in all other cases, weekend support is automatically billed at SwineTech’s then-current weekend rate of $250/hour.
4. Remedies. If SwineTech fails to satisfy the Uptime Requirement on any five (5) consecutive days, Customer shall be entitled to a pro-rata service credit calculated as 1/30 of the applicable month’s fees for each following day of failure, which constitutes Customer’s sole remedy with respect to SwineTech’s failure (if any) to satisfy the Uptime Requirement.