Terms of Service

1. SERVICE COMMITMENT

We will use commercially reasonable efforts to make the App available 99.9% of the time. In the event we do not meet the goal of 99.9% availability in a given calendar month (“Monthly Uptime Percentage”), you will be eligible to receive a Service Credit as described below.

2. DEFINITIONS

The following capitalized terms shall be given the meaning set forth below:

2.1 “Unavailable Time” means the App is not available for use according to third-party performance and monitoring services contracted by SwingU at its sole discretion (the “Monitoring Service”). The Monitoring Service reports of availability are currently available at SwingU Monitor; provided that service issues or outages relating to any Exclusions (defined below) shall not be deemed as Unavailable Time.

2.2 “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of continuous 1-minute periods during the Service Month in which the App was in a state of “Unavailable Time” as identified by Monitoring Service.

2.3 A “Service Credit” is a dollar credit, calculated as set forth below, that we may credit back to an eligible Customer account.

2.4 “Severity level” shown in the tables below are defined as follows

  • Fatal: Complete degradation — all users and critical functions affected. Item or service completely unavailable.
  • Severe: Significant degradation — many users or critical functions affected.
  • Medium: Limited degradation — limited number of users or functions affected. Business processes can continue.
  • Minor: Small degradation — few users or one user affected. Business processes can continue.

3. RESPONSE TIMES

When you raise a support issue, we strive to respond in a timely fashion. Response times are measured from the moment you submit a support request via our support channel (support@swinguapps.com). Response times apply during standard working hours (9am to 6pm Eastern Standard Time, Monday-Friday) only, unless the Agreement specifically includes provisions for out-of-hours support.

Response times depend on the priority of the item(s) affected and the severity of the issue. They are shown in this table:

Fatal

Severe

Medium

Minor

Time to Respond

within 2 hours

within 4 hours

within 8 hours

within 24 hours

4. RESOLUTION TIMES

We will always endeavor to resolve problems as swiftly as possible.

However, we are unable to provide guaranteed resolution times. This is because the nature and causes of problems can vary enormously. In all cases, we will make its best efforts to resolve problems as quickly as possible and we will do our best to fix issues within time defined below:

Fatal

Severe

Medium

Minor

Time to Fix

ASAP or up to 1 day

up to 3 days

within 1 week

within 2 weeks

5. CREDIT REQUEST AND PAYMENT PROCEDURES

For a calendar month where we do not meet the Monthly Uptime Percentage, as determined by the Monitoring Service, we, at our sole discretion after confirming the nature and accuracy of the Unavailable Time, will credit your account a percentage of that month’s billings, as defined by this table:

Priority

Monthly Uptime Percentage

Service Credit

1

<99.9%

10%

2

<99.5%

25%

3

<99%

50%

The Service Credit shall be issued to your SwingU Academies App balance for future use only. No refunds or cash value will be provided. Service Credits may not be transferred or applied to any other account.

To apply for a Service Credit, you must write an email to support@swinguapps.com within 30 days after the end of the month in which the Unavailable Time occurred. The email must include (i) “SLA Claim” as the subject; (ii) the dates and times of the Unavailable Time for which you are requesting credit; and (iii) any applicable information that documents the claimed outage.

6. EXCLUSIONS

Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability, suspension or termination of the App, or any other App performance issues, that (i) are caused by factors outside of SwingU’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of SwingU, or its direct hosting subcontractors (i.e beyond the point in the network where SwingU maintains access and control over the Services); (ii) result from any actions or inactions of Customer or any third-party (other than our direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third-party equipment, software or other technology (other than third-party equipment within SwingU’s direct control); or (iv) arise from SwingU suspension and termination of Customer’s right to use the App in accordance with the Agreement, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available App features (collectively, the “Exclusions”).

7. SOLE REMEDY

Service Credits shall be your sole and exclusive remedy for any unavailability or non-performance of App.

SCHEDULE 2

SWINGU RECURRING PAYMENT AUTHORIZATION FORM

SwingU Terms and Conditions

  1. Engagement of SwingU. SwingU shall provide the marketing and/or technology services as described in the applicable schedules marked on the Cover Page (collectively, the “Services”) to Customer. Customer agrees to respond promptly to any SwingU requests to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for SwingU to perform the Services in accordance with the requirements of this Agreement.
  1. Licenses; SLA.
    1. Mobile App. If the Services include the design and development of a mobile application (Schedule A), the following terms apply:
      1. License. SwingU hereby grants to Customer a non-transferable (except as set forth in Section 11.3), non-sublicensable license: (a) to use the App in object code only in the United States for the Term, solely for Customer’s business operations and only with Authorized Users; and (b) to use any App documentation and other related Work Product (defined below) necessary to use the App solely in connection therewith. Authorized Users mean those clients of Customer that Customer permits to access and use the App pursuant to Customer’s license hereunder.
      1. License Restrictions. Customer shall not use the App or related documentation for any purposes beyond the scope of the license granted in this Agreement.
    1. Customer Materials License. Customer hereby grants to SwingU a fully paid-up and royalty-free, non- exclusive right and license to use, reproduce, perform, display, distribute, modify and create derivative works and improvements of any Customer Materials (defined below) solely to develop the Work Product and otherwise as necessary to perform the Services for the benefit of Customer. The term of such license will commence upon Customer’s first delivery of such materials to SwingU and continue in effect until the later termination or expiration of this Agreement.
    1. Service Level Agreement. SwingU’s obligations with respect to the availability of the App and Customer’s sole remedies for the unavailability of the App are set forth in the Service Level Agreement attached hereto as Schedule C.
  1. Fees.
    1. Fees. Customer shall pay SwingU the license fees (“Fees”) as set forth in Schedule 1. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Swing’s income. SwingU will not increase Fees more than 5.0% year-over-year in the event of a renewal of this Agreement.
    1. Payment. Customer shall pay all Fees on or prior to the due date therefor as set forth in Schedule 1. Customer shall make payments to the address or account specified on the Cover Page or such other address or account as is specified by SwingU in writing from time to time, unless Customer authorizes reoccurring credit card payments in accordance with Schedule 2, in which case Schedule 2 will apply. Customer shall pay all amounts due under this Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by SwingU whether under this Agreement, applicable law or otherwise.
    1. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available (1) SwingU may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, and (2) if such failure continues for twenty (20) days following written notice thereof, SwingU may suspend or terminate this Agreement, without incurring any obligation or liability to Customer or any other person.
  1. Intellectual Property Rights.
    1. Ownership of Work Product. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of SwingU in the course of performing the Services, including any items identified as such in a Schedule (collectively, the “Work Product”), except the Customer Materials, shall be owned by SwingU. Unless a separate license to certain Work Product is provided elsewhere in this Agreement, in which case that license applies to that specific Work Product, SwingU hereby grants Customer a license to use the Work Product on a non-exclusive, worldwide, non-transferable, non-sublicensable basis to the extent necessary to enable Customer to make reasonable use of the deliverables and the Services.
    1. Customer Materials. As between the parties, Customer is and will remain, the sole and exclusive owner of all right, title and interest in and to all materials provided to SwingU by Customer (“Customer Materials”), including all intellectual property rights therein. Notwithstanding Section 4.1, any content created by SwingU for posting on Customer’s social media accounts will be deemed Customer Materials owned by Customer and SwingU hereby agrees to and does assign all its right, title, and interest in and to such content to Customer.
    1. Customer Data. Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all information, data, and other content uploaded, submitted, posted, transmitted, or otherwise provided to the App by Customer (“Customer Data”), subject only to the license granted herein. SwingU may use Customer Data to provide maintenance, support, or product enhancements solely to or for Customer, but will not otherwise disclose or use the Customer Data for any other purpose.
  1. Confidentiality. All non-public, confidential or proprietary information of a party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by the recipient without the prior written consent of the discloser. Confidential Information does not include information that is (i) in the public domain; (ii) known to the recipient at the time of disclosure; or (iii) rightfully obtained by the recipient on a non-confidential basis from a third party. Each party shall use the other party’s Confidential Information solely for the provision of Services under this Agreement. The non-breaching party is entitled to injunctive relief for any violation of this Section 5.
  1. Term and Termination.
    1. Term. The term of this Agreement commences as of the Effective Date and will continue for one (1) year thereafter (“Term”). The Term shall automatically renew for successive one-year terms unless either party delivers written notice of non-renewal to the other party no less than 60 days prior to the end of the then-current Term or the Agreement is terminated pursuant to this Section 6.
    1. Termination. Except for a breach of Section 2 (Licenses) or Section 5 (Confidentiality), in which case SwingU may immediately terminate this Agreement, if either party of this Agreement breaches this Agreement, the non-breaching party may terminate this Agreement upon written notice to the breaching party, provided the breaching party is given 20 days from the date of the notice to correct the breach and the breach is not corrected with that time period. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement, including representations, warranties, and indemnification obligations, will survive any such termination or expiration.
    1. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, (a) all licenses granted by either party to the other will also expire or terminate, except to the extent that any license has an express term that continues for a longer period or is perpetual, (b) SwingU will no longer provide the Services, (c) the parties shall promptly return any Confidential Information of the other party in their possession to the other party, and (d) SwingU will promptly return any Customer Materials in its possession to Customer. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement, including representations, warranties, and indemnification obligations, will survive any such termination or expiration.
  1. Representations and Warranties.
    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization and (b) it has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement.
    1. Additional SwingU Representations and Warranties. SwingU represents and warrants that (a) SwingU will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with all applicable laws, rules, and regulations, and generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement and (b) any Work Product will, as provided to Customer, will be in substantial accordance with the specifications for such Work Product in the applicable Schedule.
    1. Additional Customer Representations and Warranties. Customer represents and warrants that (a) the terms of this Agreement do not in any way create a conflict with any existing commitments or contracts that Customer has with third parties, and (b) the Customer Materials will not violate the rights of any third party (including intellectual property rights).
    1. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, ALL SOFTWARE, SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS” AND SWINGU HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND DEVELOPER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SWINGU MAKES NO WARRANTY OF ANY KIND THAT THE APP, OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
  1. Indemnification.
    1. SwingU Indemnification. SwingU agrees to indemnify, defend, and hold Customer harmless from and against any and all third party claims for damages, cost, judgments, penalties and expenses (including, without limitation, reasonable outside attorneys’ fees) arising from (a) any breach by SwingU of any of its representations, warranties, covenants as set forth in this Agreement, and (b) SwingU’s grossly negligent or intentional misconduct. Any settlement of any such claim shall include a full release of the Customer.
    1. Customer Indemnification. Customer agrees to indemnify, defend, and hold SwingU harmless from and against any and all third party claims for damages, cost, judgments, penalties and expenses (including, without limitation, reasonable outside attorneys’ fees) arising from (a) any breach by Customer of any of its representations, warranties, covenants as set forth in this Agreement, and (b) Customer’s grossly negligent or intentional misconduct. Any settlement of any such claim shall include a full release of SwingU.
    1. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified. The party seeking indemnification shall cooperate with the other party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such action and shall employ counsel reasonably acceptable to the indemnified party to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnified party’s failure to perform any obligations under this section will not relieve the indemnifying party of its indemnification obligations except to the extent that the indemnifying party can demonstrate that it has been prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
  1. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL SWINGU OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    1. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF SWINGU AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT OF FEES PAID TO SWINGU UNDER THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  1. Force Majeure. In no event will SwingU be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond SwingU’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
  1. Miscellaneous.
    1. Further Assurances; Relationship of the Parties; Notices. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. For any notice under the Agreement to be valid, it must be sent by personal delivery, registered or certified mail, nationally recognized overnight courier, with all fees prepaid, or electronically delivered, to the receiving party at the address for that party set forth in the cover page of this Agreement.
    1. Interpretation; Entire Agreement; Counterparts. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. This Agreement, together with all attached Schedules, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
    1. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement without SwingU’s prior written consent. Any purported assignment, delegation or transfer in violation of this section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    1. No Third-Party Beneficiaries; Amendment and Modification; Waiver; Severability. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    1. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Connecticut, in each case located in the City of Hartford, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.