Software as a Service Agreement.
[Updated October 2023
BETWEEN SWIPEGUIDE INC. AND CUSTOMER
SWIPEGUIDE INC. , a corporation under the laws of the state of Delaware, U.S.A., having offices at 228 East 45th Street, Suite 9E, New York, NY 10017 (“SwipeGuide”);
Customer., a [limited liability company] [corporation] under the laws of [STATE], with offices at [ADDRESS] (Customer”);
The parties mentioned above hereinafter also to be referred to as the “Parties” and each individually as a “Party”.
- SwipeGuide offers to license a ready-to-use software application and services related to instructional how-to and frontline know-how, in the area of connected work. The Licensed Software is offered on a subscription basis. See www.swipeguide.com for more information.
- The Customer wants to use the Licensed Software.
- SwipeGuide hereby agrees to license the Licensed Software to the Customer in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties have agreed and agree as set forth below :
1. DEFINITIONS AND INTERPRETATION.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
1.2 Words in the singular include the plural and those in the plural include the singular.
1.3 This Agreement applies to the Service, provided by SwipeGuide, and as described and agreed upon in the Order Form.
1.4 This Agreement comes into force from the date of execution or acceptance of the Order Form, or the date on which the Service is accessed or used for the first time, whatever is earlier (‘Effective Date’).
1.5 The Customer shall establish that all Users shall comply with this Agreement and the Customer shall be responsible for the acts or omissions of any User.
1.6 The Customer’s terms and conditions are explicitly excluded by the SwipeGuide.
1.7 In case of an irreconcilable conflict among the provisions of the Order Form, this Agreement and other documents relating to the Service, the following order of precedence applies:
- The Data Processing Addendum (if Parties have entered into a DPA); then
- The Order Form; then
- This Agreement; then
This present Software as a Service agreement and the applicable Schedules.
All content, including but not limited to skills profiles, learning activities, guides, user manuals, checklists and work instructions, uploaded and/or provided by the Customer through the Licensed Software.
The entity or person to which an Order Form is addressed.
All information which is made available by means of the
Licensed Software upon request or desire of the Customer, such as but not limited to Content, personal Data within the meaning of the General Data Protection Regulation (“GDPR”), feedback, questionnaires, default texts, messages, follow up feedback, lists of users, reports and evaluation, as well as all designs, logo’s, trademarks and tradenames that the Customer requests to incorporate in the visual appearance of the Licensed Software. To the extent the Data being processed by SwipeGuide qualifies as personal Data, the Data Processing Agreement applies.
Force Majeure Event
Means an event, or a series of related events, that is outside the reasonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks (including ransomware), denial of service attacks, virus or other malicious software attacks or infections and power failures, and including any pandemic/Covid19 related events/circumstances).
European Union General Data Protection Regulation (Regulation (EU) 2016/679)
Intellectual Property Rights
any patent right, copyright, design right, trade mark right, sui generis rights in databases, whether registered or not, as well as any application to register any of the aforementioned rights, and (rights in) trade secrets, or know-how and any other intellectual or industrial right of whatever nature in any part of the world
The license mentioned in 3.1
The Software as a Service (SaaS) offered by SwipeGuide, including underlying technology and software, consists of different modules that enable the Customer to capture, share, and improve instructional how-to and frontline know-how, as further outlined and specified in the Order Form.
The signed confirmation of order by the Customer.
A schedule that is attached to the Agreement.
Means the distant access and use of the Licensed Software by the Customer, as further specified in the Order Form.
Means the agreed levels concerning the performance of Services.
a person authorized by the Customer to access the Licensed Software.
The Experience Level Agreement entered into by SwipeGuide and the Customer upon approval of the confirmation of order.
2. SERVICE AND LICENSED SOFTWARE
2.1. The Customer accepts that the Licensed Software only contains the functionalities and other features as the Customer and its Users find them at the time of use ("as is"). SwipeGuide reserves the right to perform procedural and technical changes or improvements to the Services during this Agreement. The Customer acknowledges that SwipeGuide will endeavor to innovate and improve the platform. Therefore, the Customer agrees to changes within the platform that are made at SwipeGuide’s discretion (whether this is for the purpose of improving or updating the Service, resolving bugs or otherwise).
2.2 The Customer needs to create an account in order to use the Licensed Software. Any registration information that the Customer provides must be accurate, current and complete. The Customer must keep their credentials secret and up-to-date to receive notices, statements and other information from SwipeGuide by email or through the account. The Customer is at all times responsible for all actions taken through its account, whether by Users or by others.
2.3 The Customer will determine who will have access to the Licensed Software. The use of the Service by the Customers’ Users is personal. Therefore, the Users may not give any other person remote or other access to the Licensed Software. The login and password made available to the User are also personal. The User must keep these codes strictly confidential and/or use these codes with due care. The use of said codes shall be solely the responsibility of and the risk to the Customer. The Customer shall indemnify, defend, and hold harmless SwipeGuide from any claim, proceeding, loss or damages based upon any use, misuse, or unauthorized use of User’s login code and/or password relating to the Service.
2.4 The Customer shall provide information and assistance to SwipeGuide to enable SwipeGuide to deliver the Service. Upon request from SwipeGuide, The Customer shall promptly deliver all information and cooperation necessary for SwipeGuide to perform the obligations under this Agreement and the XLA. The Customer acknowledges that SwipeGuide’s ability to deliver the Service in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
2.5 SwipeGuide does not guarantee that the Licensed Software is error-free and works without interruption. SwipeGuide shall make reasonable efforts to resolve errors in the Licensed Software within a reasonable term, insofar as the Licensed Software has been developed by SwipeGuide itself and the relevant errors have been reported to SwipeGuide by the Customer in detail and in writing.
2.6 SwipeGuide shall carry out this Agreement and provide the Service in accordance with the demands of good workmanship under Dutch law, with observance of reasonable commercial standards of fair dealing. Providing the Service therefore leads to a reasonable efforts obligation and not to an obligation of result.
2.7 Subject to this Agreement, SwipeGuide shall use reasonable efforts (as defined in article 1.6) in maintaining the Licensed Software in accordance with the XLA.
3. LICENSE AND USE OF THE SERVICE
3.1. SwipeGuide hereby grants the Customer a limited, personal, non-transferable, non-exclusive, non-sub-licensable right to use the Service in accordance with this Agreement, as of the Effective Date, during the agreed Term.
3.2 The License may not be used for more workspaces (sites) and Users than as specified in the Order Form. If the actual use exceeds the agreed number of workspaces or Users, SwipeGuide may either charge an additional license fee, or demand that the Service is used in accordance with the limits specified in the Order Form.
3.3 The Customer is solely responsible for the technical operation and maintenance of its internet connection, internal network, and all other systems that are relevant or necessary for undisturbed use of the Service.
3.4 The Customer will get full access to the Licensed Software by means of the Internet. Neither SwipeGuide nor any of its agents, employees, licensors and subcontractors shall be liable to the Customer or any other party for any claim, loss, demand or damages whatsoever (whether such claims, loss, demands or damages were foreseeable, known or otherwise) arising out of or in connection with the use of the internet while accessing the Licensed Software.
3.5 The Customer, shall not:
- use the Licensed Software for any unlawful act;
- upload any unlawful, inappropriate or obscene Content, or any Content that infringes any third party right (including intellectual property rights).
- create competing versions of the Licensed Software;
- attempt to, directly or indirectly, (i) copy or republish the Licensed Software, (ii) make the Licensed Software subject to reverse engineering, (iii) lease, sub-license, encumber, lent, amend, merge into or with other software, decompile, disassemble, transfer, exchange, translate, hack, distribute or otherwise attempt to derive the source code, techniques, or other information of the Service or permit or induce the foregoing, or (iv) cause damage to or with the software or in any other way abuse the Licensed Software.
3.6 The Customer shall notify SwipeGuide of any unlawful Content. After this notification, SwipeGuide will examine the Content and reserves the right to remove it.
3.7 In case SwipeGuide reasonably suspects that a User account of the Customer is used in violation of any User restriction provisions in this clause or elsewhere in the Agreement, SwipeGuide is allowed to immediately block and prevent access to the account. This does not limit the right of SwipeGuide to any other remedies or attach other consequences mentioned in this Agreement or provided by law when the Customer is in violation of any User restriction provisions in this clause or elsewhere in the Agreement.
4. CUSTOMER RESPONSIBILITIES
4.1. Customer shall provide information and assistance to SwipeGuide to enable SwipeGuide to deliver the Service. Upon request from SwipeGuide, Customer shall promptly deliver all information and cooperation necessary for SwipeGuide to perform the obligations under this Agreement and the XLA. Customer acknowledges that SwipeGuide’s ability to deliver the Service in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2. Customer is solely responsible for the technical operation and maintenance of its internet connection, internal network, and all other systems that are relevant or necessary for undisturbed use of the Service.
4.3. Customer guarantees not to upload any inappropriate or obscene content. Customer also guarantees to notify SwipeGuide of content of this nature. After this notification, SwipeGuide will examine the content and reserves the right to remove it.
5.1 If so required by the applicable legislation, parties shall enter into a data processing agreement with regard to the processing of such personal Data in relation to the use of the Licensed Software by the Customer.
6.1. As compensation for the use of the Licensed Software, the Customer shall pay SwipeGuide the fees listed in the Order Form. All prices and fees are exclusive of, and the Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on by any taxing authority (other than taxes imposed on SwipeGuide’s income), related to the Service and this Agreement, unless the Customer has provided SwipeGuide with an appropriate resale or exemption certificate for the delivery location, which is the location where the Service is used by the Customer. In case of changes in law such that a tax is levied that is or becomes irrevocable with a consequent cost increase for SwipeGuide in connection to the delivery of the Service, SwipeGuide is entitled to increase its fees accordingly and retroactively.
6.2 Upon renewal, SwipeGuide may increase the fees up to SwipeGuide’s then-current list price. If this increase applies to the Customer, SwipeGuide will notify the Customer at least thirty (30) days in advance of the Customer’s renewal and the increased fees will apply at the start of the next Term. SwipeGuide shall be entitled to invoice the license fee on or after the Effective Date or, if earlier, the date of execution of this Agreement.
6.3 The Customer will pay the invoices in accordance with the payment terms set forth on the Order Form. Unless otherwise agreed, the Customer will make payment within thirty (30) days from the invoice date.
6.4 If the Customer fails to pay the agreed fees to SwipeGuide in accordance with the above provisions, SwipeGuide is entitled to deny the Customer access to the Licensed Software, for example, by blocking User accounts provided to the Customer. This does not limit the right of SwipeGuide to additional remedies as set forth in this Agreement or as available by law.
6.5 In case of non-payment (on time or in full) of an invoice, SwipeGuide shall send a reminder to the Customer in which the Customer is given a specific period to still make full payment. If the Customer has not paid the outstanding amount within the period mentioned in the reminder, the Customer shall be in default with regard to that payment obligation. From the moment of default, the Customer shall owe default damages on the outstanding amount equal to the statutory commercial interest.
6.6 If the Customer is in default with regard to an obligation to pay, SwipeGuide may assign the non-payment claim. In that case, all costs incurred by SwipeGuide, such as litigation costs and extrajudicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, incurred in connection with late payments, shall be borne by the Customer. The extrajudicial costs are set at least 10% of the invoice amount with a minimum of EUR 250, - excluding VAT.
7.1. This Agreement comes into effect per Effective date and shall continue for a period of 12 months (the “Initial Term”). Parties may terminate the Agreement sixty (60) days before the end of the Initial Term. After the Initial Term, the Agreement will automatically renew for additional periods of 12 months each, until terminated in accordance with this Agreement (the “Term”).
7.2 Additional modules that are purchased by the Customer during the Term will be licensed as of the date mentioned in the Order Form and for the remainder of the Term or the Initial Term. Extension of the license of such additional modules takes place in accordance with article 7.1.
7.3 After the Initial Term, either Party may terminate this Agreement upon sixty (60) days’ notice in writing to the other Party.
7.4 A Party shall have the right to terminate this Agreement in its entirety before the end of the Term upon written notice to the other Party if such other Party is in material breach of this Agreement and has not cured such breach within ninety (90) days (or thirty (30) days with respect to any payment breach) after notice from the terminating Party requesting cure of the breach. Any such termination shall become effective at the end of such ninety (90) days (or thirty (30) days with respect to any payment breach) period unless the breaching Party has cured any such breach or default prior to the end of such period.
7.5 If the Agreement is ended for any reason whatsoever, SwipeGuide will deny the Customer access to the Licensed Software immediately per the end date of the Agreement. In addition, if the Agreement is ended for any reason whatsoever, SwipeGuide will not be obligated to refund any paid fees and / or invoices. Furthermore, in case of termination of this Agreement, any and all outstanding payments become directly payable and due.
7.6 A Party may terminate this Agreement with immediate effect, without any notice being required and without being liable for any damages as a result of the termination, implying that SwipeGuide is entitled to immediately deny the Customer access to the Licensed Software, in case the other Party :
- has been dissolved or liquidated, or is in dissolution or liquidation;
- has been granted suspension of payments; or
- has been declared bankrupt.
8. INTELLECTUAL PROPERTY
8.1 All IP-rights related to the Service will vest and will remain vested exclusively in SwipeGuide and/or (insofar applicable) its third party suppliers. The Customer acquires limited rights of use only in as far as explicitly granted under this Agreement. Furthermore, SwipeGuide exclusively owns and/or may use all rights in any ideas, concepts, know-how and techniques with respect to the Service as well as the documentation and/or technology in connection thereto.
8.2 It is explicitly acknowledged and agreed that (i) the Customer may not and shall not permit any third party to reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Licensed Software or any parts thereof (including interfaces, web-sites etc.), (ii) the Customer may shall not, and shall not permit any third party, to copy, make error corrections or otherwise modify or adapt the Licensed Software or any part thereof nor create derivative works based on the Licensed Software, and/or (iii) the Customer may not sell, (sub-)license, assign, transfer or lease the Licensed Software nor use the Service for other purposes than its own business purposes.
8.3 All IP-rights in/relating to Data uploaded or otherwise provided by the Customer remains vested in the Customer, its User(s) and/or its licensors. By submitting Data onto the Licensed Software, the Customer automatically grants (on behalf of its User(s)) to SwipeGuide a royalty free, unencumbered, worldwide, non- exclusive license to use, multiply and otherwise use the Data insofar as necessary in order to provide its Service pursuant to the Agreement. This license will lapse after i) the Data is removed or ii) the Agreement is terminated.
9.1 The Customer is solely responsible and liable for all Content, Data, including personal Data, and activities conducted through or via the service, or any part or feature thereof, by or on behalf of the Customer, even if such activities were to occur without the Customer’s permission. The Customer will indemnify, defend and hold harmless SwipeGuide, SwipeGuide’s officers, directors, employees, licensors and agents, from and against any and all claims, demands, and actions, and any liabilities, damages, or expenses resulting therefrom, including court costs and reasonable attorney fees, arising out of or relating to (i) the use of the Service, (ii) claims relating to the Content or Data provided by Customer; (iii) any breach of the obligations and/or representations made by Customer under this Agreement; or (iv) Customer’s negligence, acts or omissions.
10. LIMITATION OF LIABILITY
10.1 SwipeGuide represents and warrants to the Customer and acknowledges the Customer is relying thereon, that the Licensed Software will perform substantially as stipulated in the XLA.
10.2 Although the Service has been designed with the greatest care, SwipeGuide does not guarantee that the Licensed Software will work perfectly and/or without omissions and / or will be error free in all circumstances. The Customer further acknowledges that the Licensed Software is provided over the internet, as well as by means of personal devices and/or technical infrastructure of the Customer for which SwipeGuide is not responsible, and thus the quality and availability of the Licensed Software may be affected by factors outside SwipeGuide’s reasonable control.
10.3 SwipeGuide is not liable for the Content and/or Data and/or any damage caused by incorrect, faulty, and/or unauthorized use of the Licensed Software by the Customer, e.g. contrary to SwipeGuide’s instructions, manual or guidelines.
10.4 The Customer is solely responsible for the Content that is uploaded using the Licensed Software. SwipeGuide is not responsible nor liable for (the use of) any Content uploaded by the Customer or consequences arising out of errors, omissions or use of such Content, etc.
10.5 SwipeGuide is not liable for the incorrectness or incompleteness of the processed Data as mentioned in Clause 4.1 and is not liable for the application thereof.
10.6 SwipeGuide is not liable for the Data provided by the Customer in relation to the Service.
10.7 If and in so far as the Customer is to blame for failing to observe any of its duties, or is in breach of any of its representations and warranties provided in this Agreement, the Customer is liable to SwipeGuide for compensation for loss suffered or to be suffered by SwipeGuide.
10.8 If a Force Majeure Event gives rise to failure or delay in either party performing any obligation under this Agreement, the Party whose performance of its obligations under the Agreement is affected by the Force Majeure Event will promptly notify the other Party. SwipeGuide will be authorized to suspend the Service fully for the duration of the Force Majeure Event. In case of suspension of services by SwipeGuide attributable to a Force Majeure Event, SwipeGuide will never be liable for any damages of the Customer nor will SwipeGuide be obliged to return to the Customer a proportional part of the fees. SwipeGuide will resume its Services as soon as possible.
10.9 IF AND IN SO FAR AS SWIPEGUIDE IS TO BLAME FOR FAILING TO OBSERVE ANY OF ITS DUTIES OR IS IN BREACH OF ANY OF ITS REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT, SWIPEGUIDE WILL ONLY BE LIABLE FOR THE DIRECT DAMAGES, WHEREBY THE TOTAL AGGREGATE MAXIMUM AMOUNT FOR WHICH SWIPEGUIDE MAY BE HELD LIABLE CANNOT EXCEED THE COMPENSATION OF THE AMOUNT THAT SWIPEGUIDE RECEIVES UNDER ITS LIABILITY INSURANCE IN THE RELEVANT CASE. IF, FOR WHATEVER REASON, NO PAYMENT IS RECEIVED FROM THE INSURER, THEN THE MAXIMUM AMOUNT FOR WHICH SWIPEGUIDE MAY BE HELD LIABLE CANNOT EXCEED THE VALUE OF THE FEES (EXCLUDING APPLICABLE TAXES AND OTHER PUBLIC AUTHORITY CHARGES) PAID BY THE CUSTOMER AND RECEIVED BY SWIPEGUIDE IN THE CALENDAR YEAR IN WHICH THE DAMAGES FIRST AROSE.
10.10 By ‘direct damages’ shall exclusively be understood:
- reasonable expenses which the Customer would have to incur to have SwipeGuide’s performance fulfill this Agreement. However, such loss shall not be compensated, however, if the Customer has terminated this Agreement on the basis of termination for cause (“ontbinding”);
- reasonable expenses incurred in determining the cause and extent of the loss insofar as such determination relates to any direct loss within the meaning of this Agreement;
- reasonable expenses incurred in preventing or reducing a loss insofar as the Customer proves that such expenses have resulted in a reduction of any direct loss within the meaning of this article.
10.11 TO THE EXTENT ALLOWED BY APPLICABLE LAW, PARTIES WILL NOT BE LIABLE FOR ANY OTHER DAMAGES THAN DIRECT DAMAGES, SUCH AS INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF BUSINESS, LOSS OF PROFITS AND LOSS OF USE OF DATA) RELATED TO OR ARISING OUT OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. 12 The limitations in this clause do not apply in the event of a Party’s gross negligence, willful misconduct, or fraud.
10. 13 Any right from the Customer to claim damages ceases when the Customer has not taken the measurements necessary to mitigate the damage or to prevent further and/or other damage. The right to claim damages will also cease if the Customer did not inform SwipeGuide in detail in writing within thirty (30) calendar days after noticing the damages.
11.1 Parties ensure that all information, such as Data, designs, documentation and the Licensed Software (and its underlying software), received from the other Party and is known or should have been known by the receiving Party as confidential, is kept strictly confidential. The receiving Party shall use such confidential information solely for the purposes it was provided for and shall not disclose or otherwise dispose of such confidential information to third parties, unless it is obliged to do so by legal requirement or verdict. In that case the disclosing Party shall inform the other Party of the legal requirement or verdict, unless laws prohibit such notice.
11.2 The receiving Party will use all reasonable efforts to safeguard the confidential information of the other Party, in the same way and on the same level as it would safeguard its own confidential information.
11.3 All copies, extracts and notes thereof made by the receiving Party shall remain the other Party’s property and shall be treated as confidential information of the other Party. Upon termination of this Agreement, the receiving Party shall, at the request of the other Party, promptly return to the other Party all confidential information of the other Party which the receiving Party may then have in its possession.
12.1 SwipeGuide may at any time during the Term of this Agreement amend or supplement this Agreement. The Customer will be notified in writing of these amendments, in which notification amendments will be mentioned. This new Agreement will be applicable as of the next renewal date of the Customer.
12.2 If any provision of this Agreement shall be held by any court of competent jurisdiction to be invalid or unenforceable, (i) the invalidity or unenforceability of such provision shall have no effect upon and shall not impair the validity and enforceability of any other provision of this Agreement, and (ii) Parties shall reach agreement on the replacement of the invalid and/or unenforceable provision by a valid and enforceable provision that complies – as much as possible – with the objectives of the Parties as expressed in this Agreement.
12.3 This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective licensors, successors and assignees.
12.4 No Party hereto may assign this Agreement or any part hereof without the prior written consent of the other Party hereto. However, SwipeGuide may assign this Agreement to affiliated parties upon written notice to the Customer.
12.5 Rights and obligations under this Agreement which by their nature are intended to survive termination, including without limitation the indemnification and liability limitations provisions set forth in this Agreement, shall remain in full effect after termination or expiration of the Agreement.
12.6 The Customer is not permitted to transfer any obligation from the Agreement to third parties, unless SwipeGuide expressly agrees.
12.7Any notice of legal nature under this Agreement shall be given by sending it by email to firstname.lastname@example.org.
13. GOVERNING LAW AND JURISDICTION
13.1 This Agreement shall be governed by the laws of the State of New York, U.S.A. Any disputes arising under, or related to, this Agreement must be brought in the courts located in New York, New York. The Parties hereto irrevocably consent to the exclusive subject matter jurisdiction and venue of such courts. The Parties further agree and consent to the personal jurisdiction of such courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these terms and conditions. ANY CAUSE OF ACTION AGAINST A PARTY, EITHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
SCHEDULE A – Experience Level Agreement (XLA)
THIS XLA IS AN ATTACHMENT TO THE SOFTWARE AS A SERVICE AGREEMENT BETWEEN SWIPEGUIDE AND THE CUSTOMER (“AGREEMENT”). CAPITALIZED / DEFINED TERMS IN THIS XLA WILL HAVE THE MEANING SET FORTH IN THE AGREEMENT.
1. EXPERIENCE LEVEL COMMITMENT
1.1 During the Term of the Agreement, as defined in the Agreement, and with respect to the Licensed Software SwipeGuide shall ensure that the Licensed Software will be provided in accordance with the Service levels as set out in this Schedule.
1.2 SwipeGuide shall not be liable for any failure to meet the Service levels where such failure results from, without limitation:
- Any breach by the Customer or its Users of the terms and condition of this Agreement;
- Any failure of the Customer or its Users to maintain an adequate connection to the internet or other such form of connectivity which the Customer’s products require in order to access the Licensed Software;
- Any failure or malfunction of the Customer’s products which is not attributable to the Licensed Software;
- Any failure or malfunction caused by components, factors, systems or products not directly sourced and provided by SwipeGuide; or
- Any failure or malfunction outside SwipeGuide’s reasonable control.
2.1 The availability of the Licensed Software is the percentage of total possible time per month the Service is available to the Customer for use. To calculate this, SwipeGuide subtracts the number of downtime minutes from the total possible minutes in a month.
2.2 SwipeGuide guarantees a 99.9% availability of its Service. Downtime is the time the Service is not available to the Customer for use in a given month due to incidents. Situations that don’t fall under downtime are e.g.:
- Service degradation of some parts of the SwipeGuide platform, like reduced speed of (up)loading Customer Content or sharing thereof.
Issues related to third party apps or caused by third parties.
Network problems external to our systems that are beyond our control.
Scheduled downtime for platform maintenance (we will inform you as soon as necessary).
There is a force majeure causing our services to be interrupted (e.g. forces of nature or power outages).
Issues caused by the Customer due to non-compliance with the fair use policy, as described in the Agreement.
Deployment issues related to SwipeGuide native apps published outside of the standard Apple App Store and Google Play.
SwipeGuide has availability monitoring in place to keep the pulse of the platform. The Customer can check the availability via the portal: status.swipeguide.com
3. RELEASE MANAGEMENT
3.1 SwipeGuide releases improvements and new functionalities to the Licensed Software on a daily basis without scheduled downtime. Our standard release window for incidental platform maintenance with scheduled downtime is between 00:00 – 03:00 CEST. On some occasions, we might need to release outside this window with scheduled downtime. In these cases, we will inform you in advance as far as possible. Releases of the SwipeGuide native apps will be done through the Apple App Store & Google Play. For releases of the native SwipeGuide apps through other stores separate agreements will be made.
4. SOFTWARE IMPROVEMENTS
4.1 SwipeGuide will automatically make available to the Customer new versions, releases, and updates to the Service to add new features, enhance existing features, solve defects and/or errors, keep the platform up-to-date with market developments, or otherwise improve (the operation or functionality of) the Service. SwipeGuide will only support the most recent version of the Service. SwipeGuide shall make reasonable efforts to ensure that when performing such actions, the impact on the Customer and its User(s) is limited.
4.2 New versions, releases, or updates will contain at least the level of functionality as set out in this Agreement and as contained in the previous version or release of the Service, and will not otherwise negatively impact the use of the Service.
4.3 For the SwipeGuide native apps the most recent version is available through the Apple App Store & Google Play. For releases of the SwipeGuide native apps through other stores separate agreements will be made.
5. INCIDENT MANAGEMENT
5.1 Every day SwipeGuide will do its best to avoid incidents to happen on the platform. When an incident might happen, we have a solid procedure in place. SwipeGuide handles incidents according to the following process.
5.2. Users with a SwipeGuide User account can report an incident through the chat in the platform or via email@example.com. SwipeGuide needs to know at least the time of the incident, the name of the User, the steps taken to get to the incident and the possible error message. It helps to add a screenshot to illustrate the incident when relevant and communicate the system and browser used.
5.3 SwipeGuide support confirms receipt and reproduces the incident.
5.4 SwipeGuide support classifies the issue:
Priority 1 = the Licensed Software is not available to Users (picked up within 1 hour).
Priority 2 = Service degradation meaning part of the functionality is not or in a limited way available.
Priority 3 = an issue that only affects one or few users.
5.5 SwipeGuide support confirms receipt and reproduces the incident.
5.6 Incident will be recovered by the SwipeGuide team. SwipeGuide support will inform the reporting User on the status of the incident recovery through chat and/or e-mail.
5.7 The reporting User tests the solution. The User tests if the incident is solved and reports back an OK to SwipeGuide support.
5.8 SwipeGuide support closes the incident. Incidents will be closed, root-cause analysis will be done and the incident is logged for reporting to the Customer.
6.1 Security is important to SwipeGuide. SwipeGuide aims to deliver a secure platform to its users. SwipeGuide does this through manual and automated testing before releasing New versions of the Licensed Software. SwipeGuide has an authentication process in place for editor and admin Users of the platform. Also, we provide the Licensed Software through a secure SSL connection. SwipeGuide has a data processing agreement that covers all legal aspects of handling user Data. Besides this SwipeGuide performs periodical security check-ups that assesses all aspects of the platform (both technical and logical).
7. CUSTOMER SERVICE
7.1 The main customer care channel is the chat function on the SwipeGuide website and in the application. In case the Customer experiences an issue, a message can be left in the chat function and we will pick it up immediately. No additional costs will be charged. Alternatively, a message can be sent to firstname.lastname@example.org