PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE SWARM64 SOFTWARE. THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) GOVERN USE OF THE SOFTWARE AND ITS DOCUMENTATION.
Swarm64 Incorporated (“Swarm64”) is willing to license the Software specified in the applicable Order Schedule to you or the entity that you represent, only upon the condition that (a) you accept all the terms contained in this EULA and (b) you have been registered as the end user Customer for the purposes of this EULA.
By signing or otherwise accepting an Order Schedule for the Software designated therein, or by accessing or using such Software, you indicate that you as the Customer understand this EULA and accept all of its terms. If you are entering into this EULA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this EULA, in which case Customer shall refer to such entity. If you do not agree to the terms of this EULA, you may not download, install or use the Software or its documentation.
1.1 “Processor Core” means a virtual CPU core available to the operating system in a server, a server cluster or within a system virtual machine. It refers to one hardware thread in the physical CPU core available to the operating system during operation. In some architectures a single physical CPU core may have the feature of two or more hardware threads each available as virtual CPU cores to the operating system, each of these Virtual CPU cores counting as one Processor Core if this feature is active during operation.
1.2 “Licensed Quantity” means, at any given time the quantity of Software licenses that Customer has purchased pursuant to an Order Schedule, and that are then in effect. Each such license corresponds to a right to operate the Software on a server, or a server cluster, or a system virtual machine having up to a specified number of Processor Cores, as indicated in the relevant Order Schedule.
1.3 “Order Schedule” means Customer’s order for Software licenses and Support Services, as accepted by both parties.
1.4 “Production Use” means any deployment of the Software in a production environment, or the use or deployment of the Software, or any output from the Software, in the operation of a business, government agency, academic institution, or for any other production or commercial data-processing purposes.
1.5 “Software” means the Swarm64 executable data-processing software for which Customer purchases a license, under this EULA and, as identified in an Order Schedule, and (where the context permits) any related documentation furnished by Swarm64. The Software also includes any error corrections and updates to the foregoing that Swarm64 provides to Customer as part of the Support Services.
1.6 “Subscription Term” means Customer’s subscription license term for the Software, which begins on the Subscription Term effective date set forth in the Order Schedule and (unless earlier terminated as set forth herein) continues for the period specified in the Order Schedule and any applicable renewal period(s).
1.7 “Support Services” means the maintenance, support, training, and/or other services for the Software that Swarm64 provides to Customer under this EULA.
2.1 License Grant. Subject to Customer’s compliance with the terms and conditions of this EULA, and for the Subscription Term, Swarm64 grants to Customer a non-exclusive, non-transferable, worldwide, limited license to: (a) install and run the Software, solely for Customer’s internal development and testing purposes (and not for any Production Use, including processing data for or on behalf of any third party), on computer equipment that, in the aggregate, does not include or connect to Processor Cores in excess of the applicable Licensed Quantities; and (b) copy the Software as reasonably required to exercise its rights under clause (a) and for backup or archival purposes.
2.2 Users. Customer may exercise its license rights under this EULA on any number of computer systems (subject to the Licensed Quantity limitation set forth above) and through any number of employees, consultants, contractors, and/or other individual users acting on its behalf. Customer will ensure that its users comply with all relevant terms and conditions of this EULA.
2.3 License Restrictions. Except as expressly provided in this EULA, Customer may not and will not: (a) copy or modify the Software, in whole or in part; (b) transfer, sublicense, lease, lend or rent or otherwise distribute the Software to any third party; or (c) make the functionality of the Software available to third-party users through any means, including but not limited to by uploading the Software to a network or file-sharing service, or through any hosting service, software-as-a-service solution, data processing service, or any other type of services. Customer may not and will not use or permit use of the Software in any manner that is inconsistent with applicable laws or regulations, the legal rights of third parties, the terms of this EULA, or Swarm64’s published documentation, or for any unlawful or improper purpose. Customer may not and will not use or permit use of the Software or any of its output for benchmarking purposes, or to develop any similar or competing software or technology, or for other competitive purposes, without Swarm64’s prior written consent. Customer acknowledges and agrees that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Swarm64 and its licensors. Accordingly, Customer agrees not to disassemble, decompile or reverse engineer the Software or permit or authorize a third party to do so, except to the extent such restrictions are expressly prohibited by law.
2.4 Limited Rights. Customer’s rights in the Software will be limited to those expressly granted in this EULA. Swarm64 reserves all rights and licenses in and to the Software not expressly granted to Customer under this EULA.
2.5 U.S. Government End Users. The Software is a “commercial item,” containing “commercial computer software” and “commercial computer software documentation,” as those terms are used in FAR 12.212, FAR 227.72, and any other applicable government procurement regulations and supplements. If it is to be used by the U.S. government, the government’s rights in relation to the Software will be limited to those granted in (and are subject to the terms and conditions of) this EULA and any relevant open-source licenses where applicable, to the exclusion of any other rights the government may otherwise have under any FAR, DFARS, or other clauses, provisions, or regulations.
2.6 Open Source Software. The Software may include or be accompanied by programs, libraries, and/or other items that are licensed by third parties under open-source or similar license terms, as indicated in the applicable Software code or documentation furnished by Swarm64. With respect to any such items, nothing in this EULA will be construed to limit any rights Customer or any other person may otherwise have (nor diminish any terms or conditions to which such rights are subject) under the applicable open-source or similar license terms that are included in or provided with the Software.
3.1 Software. Customer expressly acknowledges that Swarm64 and its licensors own all worldwide right, title and interest in and to the Software, including all copyrights, patent rights, trademarks, trade secrets, know-how, and other intellectual property and intellectual property rights therein. Customer will not delete or in any manner alter the copyright, patent, trademark or other proprietary rights notices appearing on the Software as delivered to Customer. Customer will reproduce such notices on all copies it makes of the Software.
3.2 Customer Data. Customer owns all worldwide right, title and interest in and to all Customer data that is processed by the Software and any output data generated by the Software to the extent based on such Customer data.
4. SUPPORT SERVICES
Swarm64 will provide Customer with basic Support Services, at the same level Swarm64 generally provides Support Services to its licensees of the Software at no additional charge (which includes technical support only during Swarm64’s business hours), in accordance with the terms of its then-current maintenance and support policy, the current version of which is available here. As set forth therein, Swarm64 may offer enhanced Support Services (which may include, for example, 24/7 technical support and/or on-site assistance) for additional fees, and if purchased by Customer, Swarm64 will provide those enhanced Support Services as described in the applicable Order Schedule, subject to Customer’s payment of the corresponding fees specified in that Order Schedule.
5. RENEWAL AND PAYMENT
5.1 Renewal. After the initial Subscription Term specified in the Order Schedule, the Subscription Term (and all of Customer’s Software licenses and ongoing Support Services purchased thereunder) will automatically renew for successive periods of the same duration (or, if applicable, for such other renewal periods as may be specified in the Order Schedule), unless and until either party has notified the other party of non-renewal at least thirty (30) days before the scheduled renewal date. The renewal fees for each Software license will be the same as the per-license fees for the preceding Subscription Term or, if applicable, such revised per-license fees as Swarm64 may establish by written notice to Customer at least sixty (60) days before the scheduled renewal date; provided, however, that any increase of more than 5% over the previous period’s per-license fees (for the same number of Processor Cores) will not be effective unless agreed upon by Customer in writing.
5.2 Pricing for Additional Orders. The price for each additional Software license that Customer purchases during the Subscription Term (beyond the quantities specified in the Order Schedule) will be equal to the then-current per-license fee, as set forth in: (a) the Order Schedule, as may be revised in accordance with Section 5.1, or (b) Swarm64’s then-current published price list if the Order Schedule does not specify license fees; provided, however, that such price will be prorated as needed to reflect the number of days remaining (at the time of purchase) in the then-current Subscription Term. The newly purchased Software licenses will accordingly be effective for the remaining portion of the Subscription Term (including renewals as applicable, subject to Customer’s payment of associated renewal fees). The pricing for any enhanced Support Services that Customer purchases during the Subscription Term will be as stated in Swarm64’s then-current published price list, unless otherwise agreed by the parties in writing.
5.3 Payment Obligation. Customer will pay Swarm64 the fees for the Software licenses and (if applicable) enhanced Support Services as specified in the Order Schedule, and as described above in the case of renewal fees. If so indicated in an Order Schedule, Customer will also reimburse Swarm64 for any reasonable and customary out-of-pocket travel and lodging expenses incurred by Swarm64 in connection with performing any enhanced Support Services hereunder. At Customer’s request, Swarm64 will furnish Customer with receipts and other documentation for all such expenses.
5.4 Payment Terms. Unless otherwise specified in the Order Schedule: (a) all fees will be invoiced in advance at the beginning of the initial subscription period and each renewal period; (b) any reimbursable expenses will be invoiced as they are incurred (but no more frequently than monthly); and (c) all amounts will be due and payable within thirty (30) days after the date of Swarm64’s invoice. Customer will pay all invoices in full, without reduction or setoff of any kind. Any payment due under this EULA not received by Swarm64 within ten (10) days of the due date will incur interest at a rate of 1.5% per month, or the maximum rate allowed by law, whichever is lower.
5.5 Taxes. All fees payable under this EULA are net amounts and are payable in full without deduction for taxes or duties of any kind. Customer will remit all fees in U.S. currency unless otherwise indicated in the Order Schedule. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this EULA or Customer’s receipt or use of the Software and Support Services, except for taxes based on Swarm64’s net income. In the event that Swarm64 is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to Swarm64. If Customer pays any withholding taxes that are required to be paid under applicable law, Customer will furnish Swarm64 with written documentation of all such tax payments, including receipts.
6. VERIFICATION AND AUDIT
6.1 Certification. At Swarm64’s written request from time to time during the Subscription Term and for one year thereafter, Customer will furnish Swarm64 with a certification signed by an officer of Customer stating the number and type of Processor Cores that are or have been used in combination with the server, or server cluster, on which the Software is or has been operated, and verifying that the Software is being used in accordance with the terms of this EULA and the applicable Order Schedules.
6.2 Audit. During the Subscription Term and for one year thereafter, upon at least ten (10) days prior written notice, Swarm64 may audit Customer’s use of the Software to ensure that Customer is in compliance with the terms of this EULA and the applicable Order Schedules; provided, however, that Swarm64 may exercise such audit right no more than once per year as long as Customer remains in compliance. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. Customer will provide Swarm64 with access to the relevant Customer computer equipment, records, and facilities. Swarm64 will maintain in confidence any non-public Customer information disclosed in the course of the audit. Without limiting Swarm64’s other remedies for any violation of this EULA, if an audit reveals that Customer has exceeded the Licensed Quantity limitation during the period audited, then Customer will promptly pay Swarm64 for any required additional Software licenses, retroactive to the beginning of the period audited and based on Swarm64’s price list in effect at the time the audit is completed. If the audit reveals an underpayment of greater than five percent (5%) of the license fees actually paid by Customer for the Software for the period audited, then Customer will also pay Swarm64’s reasonable costs of conducting the audit.
7. WARRANTY AND DISCLAIMERS
7.1 Limited Warranty. Swarm64 warrants that, for a period of ninety (90) days after the initial Subscription Term effective date, the Software will be capable of performing as specified in Swarm64’s applicable published documentation in all material respects.
7.2 Sole Remedy. As Customer’s sole and exclusive remedy and Swarm64’s entire liability for any breach of the warranty set forth in Section 7.1, Swarm64 will, at its option: (a) promptly correct any portion of the Software that fails to meet this limited warranty; or (b) provide Customer with a reasonable procedure to circumvent the nonconformity.
7.3 Third-party Products. Customer agrees that Swarm64 makes no representations or warranties and has no responsibility or liability to Customer of any other products or services that Customer obtains from a third party.
7.4 Disclaimers. WITH THE EXCEPTION OF THE LIMITED WARRANTY EXPRESSLY STATED IN SECTION 7.1, SWARM64 DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL REPRESENTATIONS AND WARRANTIES IN RELATION TO THE SOFTWARE AND/OR SUPPORT SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SWARM64 OR ELSEWHERE WILL CREATE ANY WARRANTY FOR THE SOFTWARE OR SUPPORT SERVICES NOT EXPRESSLY STATED IN THIS EULA. FOR CLARITY, AND WITHOUT LIMITING THE DISCLAIMERS ABOVE, SWARM64 MAKES NO GUARANTY THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE CONFIGURATIONS OR APPLICATIONS THAT CUSTOMER MAY SELECT FOR USE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED.
8.1 Swarm64 Indemnity. Subject to the following provisions of this Section 8, Swarm64 will defend, indemnify and hold Customer harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees and other professional fees) awarded against Customer in a final non-appealable judgment or that are agreed to in settlement, to the extent based on a third-party claim that the Software, as delivered by Swarm64 and used in accordance with this EULA and Swarm64’s applicable documentation, infringes any patent or copyright or misappropriates any trade secret of such third party.
8.2 Procedure. Swarm64’s obligations under Section 8.1 in relation to any given claim are conditioned upon Customer’s: (a) promptly notifying Swarm64 in writing of such claim; (b) granting Swarm64 sole control of the defense and settlement of the claim; and (c) providing Swarm64, at Swarm64’s request and expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Customer has the right to retain counsel, at its expense, to participate in the defense or settlement of any claim. Swarm64 will not be liable for any settlement or compromise that Customer enters into without Swarm64’s prior written consent.
8.3 Exclusions. Swarm64’s obligations under Section 8.1 will not apply to the extent any claim results from or is based on: (a) any use of the Software outside the scope of Customer’s license or otherwise in violation of this EULA; (b) any combination, operation or use of the Software with any product, system, device, method or data not provided by Swarm64, if such claim would have been avoided but for such combination, operation or use; (c) modification of the Software by anyone other than Swarm64, if a claim would have been avoided but for such modification; or (d) the failure of Customer to install and use any upgrades furnished by Swarm64 to avoid a claim, if such claim could have been avoided by such installation and use of such upgrades.
8.4 Mitigation. If Customer’s use of the Software is, or in Swarm64’s opinion is likely to be, enjoined due to the type of claim specified in Section 8.1, then Swarm64 may, at its sole option and expense: (a) replace or modify the Software to make it non-infringing and of substantially equivalent functionality; (b) procure for Customer the right to continue using the Software under the terms of this EULA; or (c) terminate Customer’s rights and Swarm64’s obligation under this EULA with respect to such Software and refund to Customer a pro-rata portion of the fees paid for such Software for the remaining portion of the Subscription Term.
8.5 Sole Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 SET FORTH SWARM64’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE SOFTWARE OR ANY USE THEREOF.
9. CONFIDENTIAL INFORMATION.
9.1 Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Customer agrees to treat the Software as Confidential Information of Swarm64.
9.2 Exclusions. The obligations and restrictions set forth in Section 9.3 will not apply to any information that: (a) is or becomes generally known to the public through no fault of or breach of this EULA by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
9.3 Use and Disclosure Restrictions. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this EULA and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this EULA, provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 9. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 9.3 will remain in effect during the term of this EULA and for a period of five (5) years after the expiration or termination of this EULA.
9.4 Permitted Disclosures. The provisions of this Section 9 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Damages. EXCEPT IN RELATION TO GROSS NEGLIGENCE, FRAUD, OR BREACH OF SECTION 9 BY SWARM64, IN NO EVENT WILL SWARM64 BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR THE LIKE, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA, THE SOFTWARE, OR THE SUPPORT SERVICES, WHETHER THE CLAIM FOR SUCH LOSS OR DAMAGES IS BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SWARM64 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10.2 Total Liability. EXCEPT IN RELATION TO ANY GROSS NEGLIGENCE, FRAUD, OR BREACH OF SECTION 9 BY SWARM64, SWARM64’S AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS EULA, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO SWARM64 BY CUSTOMER UNDER THIS EULA FOR THE PARTICULAR SUBSCRIPTION PERIOD(S) IN WHICH THE LIABILITY AROSE.
10.3 Acknowledgment of Risk Allocation. The parties acknowledge that the limitations and exclusions contained in this Section 10 and elsewhere in this EULA represent a bargained-for allocation of risk between the parties considering their respective obligations and benefits under this EULA and the amounts to be paid hereunder. Accordingly, the parties agree that such limitations and exclusions will survive and apply to the fullest extent permitted under applicable law, even if any exclusive remedy specified in this EULA is found to have failed of its essential purpose.
11. TERM AND TERMINATION
11.1 Term. This EULA will commence on the Order Schedule effective date and continue for the duration of the Subscription Term, as determined in accordance with the Order Schedule and the renewal provisions of Section 5.1, unless earlier terminated as provided below.
11.2 Termination for Cause. Either party may terminate this EULA and the Subscription Term if the other party: (a) breaches any material term of this EULA and fails to cure such breach within thirty (30) days after written notice thereof; or (b) becomes unable to pay its debts when due or enters into liquidation or has a receiver or examiner or a person in the nature of a receiver or examiner appointed to its undertaking or assets or enters into any arrangement with its creditors. No termination on the basis of this provision will entitle Customer to a refund of any portion of the fees paid to Swarm64.
11.3 Effect of Termination. Upon the expiration or termination of this EULA: (a) all Software licenses and Support Services purchased by Customer will terminate; and (b) each party will promptly destroy or return to the other party all Confidential Information of the other party in its possession or control.
11.4 Survival. The provisions of Sections 3, 6, 8, 9, 10, 11.3, 11.4, and 12, and the parties’ rights and obligations thereunder, will survive the expiration or any termination of this EULA.
12.1 Assignment. Customer may not assign or transfer this EULA, in whole or in part, by operation of law or otherwise, without Swarm64’s express prior consent. Any attempt to assign or transfer this EULA, without such consent, will be void. Swarm64 may assign this EULA to a third party that acquires or succeeds to all or substantially all of Swarm64’s assets or related business (whether by merger, sale, operation of law or otherwise). Subject to the foregoing, this EULA will inure to the benefit of and be binding on the parties, their respective successors and permitted assigns.
12.2 Publicity. Neither party will issue any press release or make any other public statement regarding this EULA or the parties’ relationship hereunder without the other party’s express approval; provided, however, that Swarm64 may use Customer’s name and logo (subject to Customer’s applicable reasonable trademark usage guidelines as furnished to Swarm64) on Swarm64’s website and other marketing materials to indicate that Customer is a licensee of the Software.
12.3 Governing Law, Venue. This EULA will be governed by and construed in accordance with the laws of the State of California excluding that body of law known as conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this EULA. Any legal action or proceeding arising under this EULA will be brought exclusively in the federal or state courts located in the Northern District of California (except as provided in Section 12.4) and the parties hereby irrevocably consent to the jurisdiction of and venue in such courts. Each party consents to receiving service of process and other documents directly via notice given in accordance with Section 12.9, to the fullest extent such consent may be effective under applicable laws.
12.4 Equitable Relief. Each party acknowledges that a breach of any confidentiality obligation, license restriction, or proprietary rights provision of this EULA (including Section 2.3 and Section 9) or infringement or misappropriation of the other party’s intellectual property rights may cause the other party irreparable damage, for which the award of damages would not be adequate compensation. The aggrieved party may seek and obtain injunctive or other equitable relief in any court of competent jurisdiction to prevent or remedy any such breach, infringement, or misappropriation (whether threatened or actual), in addition to any other relief to which the aggrieved party may be entitled at law or in equity.
12.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this EULA invalid or unenforceable, that provision of the EULA will be enforced to the maximum extent permissible and the other provisions of this EULA will remain in full force and effect.
12.6 Waiver. A failure by either party to enforce any provision of this EULA will not constitute a waiver of future enforcement of that or any other provision.
12.7 Remedies. Except as expressly set forth in this EULA, the exercise by either party of any of its remedies under this EULA will be without prejudice to its other remedies under this EULA or otherwise. The prevailing party in any legal action to enforce this EULA shall be entitled to recover all of its reasonable attorney’s fees and other reasonable costs of litigation.
12.8 Relationship of Parties. The parties to this EULA are independent contractors and this EULA will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
12.9 Notices. All notices, approvals, consents and other communications required or permitted under this EULA will be in writing, will reference this EULA, and will be sent to the other party at the address designated in the Order Schedule, or to such other address as such other party may specify by notice given in accordance with this Section 12.9. Notices will be deemed given upon receipt (with confirmation of such receipt, in the case of notices delivered by email).
12.10 Force Majeure. Neither party will be responsible or liable to the other party for any failure or delay in its performance under this EULA (other than the payment of fees) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortage of or inability to obtain energy, or supplies, war, terrorism, riot or acts of God (each a “Force Majeure”). In the event of a Force Majeure, the party that is unable to perform or whose performance is delayed will promptly notify the other party of the Force Majeure and will use its commercially reasonable efforts to resume performance.
12.11 Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Software, nor any direct product thereof is: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.
12.12 Entire Agreement. This EULA and the Order Schedule, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. The provisions of the Order Schedule will supersede the provisions of this EULA to the extent of any express inconsistency, but only in relation to that Order Schedule. This EULA may be modified or any rights under it waived only by a written document executed by both parties. No Order Schedule will be deemed accepted by Swarm64 unless and until Swarm64 accepts such Order Schedule in writing. Any terms and conditions contained in any Customer purchase order, or other Customer communication that are inconsistent with or in addition to the terms and conditions of this EULA are void and will be deemed stricken, unless expressly agreed to in writing by Swarm64.
12.13 Counterparts. This EULA may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
12.14 Language. The parties acknowledge that it is their express wish that this EULA and all notices and other documents to be given or executed pursuant hereto, and all dispute resolution proceedings hereunder, will be in English. Any translation or version of the foregoing in any language other than English will be solely for the parties’ convenience and will not be binding on the parties nor affect the interpretation of the English version.
If you have any questions regarding this EULA, you may contact Swarm64 at firstname.lastname@example.org
Swarm’s address for notice:
470 Ramona St.
Palo Alto, CA 94301