1.1 By using the products, services and websites provided by or through swie.io or by asking for a quote or placing a purchase order via the websites, email or phone (referred to collectively as using the “Services”), you (the “Customer”) are entering into a legal agreement between you and Swissmic SA with its seats in Lausanne, Switzerland (hereinafter “Swie”) who owns the trademarks Swie and Swie.io. "Products" shall mean any goods forming the subject of the sales contract including parts and components of or material incorporated in them.
1.2 Unless otherwise agreed in writing with Swie, an agreement with Swie will always include the terms and conditions set out in this document. These are referred to below as the “Universal Terms”.
1.3 The agreement with Swie may also include other terms that may be applicable to the use of the Services or a particular part of the Services, in addition to the Universal Terms. All of such legal notices are referred to below as the “Additional Terms.” Where Additional Terms apply to a Service, these will be accessible for the Customer to read either within, or through the use of, that Service. Collectively, these Universal Terms and the Additional Terms are referred to below as the “Terms.”
1.4 In order for a natural person to be eligible to become a user of the Services (an “Individual Customer”), he or she (hereinafter the masculine form is used for both sexes) must, at a minimum, meet the following criteria (the “Criteria”), and he must represent and warrant that he:
A. is no less than 18 years of age or is an emancipated minor;
B. is not currently restricted from the Services and not otherwise prohibited from having an Account (as defined below);
C. is not a competitor of Swie and/or are not using the Services for reasons that are adverse to, or can reasonably be expected to compete with, Swie and/or any of the Services;
D. will only maintain one (1) Account at any given time;
E. has full right, power and authority to agree to abide, and be bound by, the Terms and doing so will not violate any agreement or obligation to which he is subject;
F. is not a person barred from receiving the Services under Swiss laws and laws of other countries including the country in which he is resident or from which he uses the Services;
G. will not violate any rights of Swie, including, without limitation, any of Swie’s copyright, trademark, trade secret or other intellectual property rights; and
H. agrees to provide, at his own cost, all equipment, software (other than the Software (as defined below)) and internet access necessary to use Swie and/or any of the Services. If a person does not meet, and/or is unable or unwilling to represent and warrant to Swie that he meets, all of the Criteria, he is not eligible to become an Individual Customer, and cannot be permitted to access, view, download or otherwise use any Content (as defined below) or Services.
1.5 If the Customer is using the Services on behalf or at the direction of a corporation, limited liability company, partnership, trust or other legal entity (an “Entity”), regardless of whether such entity may have a separate agreement with us, the Customer is nevertheless individually bound by these Terms.
1.6 If the Customer creates an Account on behalf of an Entity (an “Entity Customer,” and collectively with Individual Customers, “Customers”), he must represent and warrant that: (i) he has full legal right and authority to bind such Entity to all of the Terms; (ii) he has read and understands the Terms; (iii) he agrees, on behalf of such Entity, to abide, and be bound, by the Terms. “Account” means, with respect to any Customer, the account (identified by a username and/or email address) that such Customer forms with Swie and pursuant to which Swie provides, and Customer uses, any of the Content or Services.
1.7 Notwithstanding any other provision of the Terms or any other agreement between the Customer and Swie, the Customer agrees:
A. not to share an Account or Profile (as defined below) with any other person or Entity;
B. to keep his Account and/or Profile password secure and confidential;
C. not to maintain more than a single Account or Profile at any time;
D. not to open a second Account (including following termination of a previous Account) without the express written consent of Swie; and
E. to be responsible for any actions undertaken, information distributed or communications made within or through your Account and/or Profile.
1.8 The Customer agrees that, as between the Customer and Swie, Swie is a service provider only. Swie explicitly disclaims any implication (from the Terms or otherwise) that the Customer and Swie are partners, joint ventures or have an agency relationship of any kind whatsoever.
1.9 If, with respect to any of the Services, there is a conflict between, on the one hand, any provision(s) of any applicable Additional Terms and, on the other hand, any provision(s) of these Universal Terms, then the Additional Terms shall take precedence in relation to that Service.
2.1 In order to use the Services, the Customer must first agree to the Terms.
2.2 The Customer can accept the Terms by:A. clicking to accept or agree to the Terms where this option is made available to Customers by Swie in the user interface for any Service; or B. actually using the Services. In this case, it is understood and agreed that Swie will treat any use of the Services as acceptance of the Terms from that point onwards.
2.3 It is understood that in providing Customers the Services, Swie is relying on the Customer’s agreement to the Terms and their being effective.
2.4 The Customer is responsible for printing a hard copy and/or saving a copy of these Universal Terms any applicable Additional Terms for his records.
3.1 Swie may provide the Services through subsidiaries and affiliated legal entities (“Subsidiaries and Affiliates”) and/or third party licensees and vendors (“Third Party Service Providers”) located around the world. The Customer acknowledges and agrees that Swie is entitled to engage or otherwise cause or allow Subsidiaries and Affiliates and/or Third Party Service Providers to provide all or any portion of the Services.
3.2 Swie is constantly innovating in order to provide the best possible experience for its Customers. The Customer acknowledges and agrees that the form and nature of the Services which Swie provides may change from time to time without prior notice.
3.3 The Customer acknowledges and agrees that Swie may permanently or temporarily stop providing the Services or any features within the Services to him or to Customers generally, at Swie’s sole discretion, without prior notice. In addition, from time to time, Swie may promote or advertise new features and/or Services that are not yet available, but that Swie anticipates it will make available to its Customers in a timely fashion. Notwithstanding the foregoing, there can be no assurance that any particular Service, whether or not identified or otherwise advertised on or in connection with Swie.io, is, will be or will remain available for use by any Customer.
3.4 The Customer may stop using the Services at any time without needing to specifically inform Swie.
3.5 The Customer acknowledges and agrees that if Swie disables access to his Account and/or any of the Services, he may be prevented from accessing some or all of the Services, the Account details or any files or other content that is contained in his Account. In the event that Swie disables the Customer’s account, his access to files or other content contained in the Account will be subject to the terms specified in Article 13.
3.6 The Customer acknowledges and understands that Swie provides a limited amount of storage space to Customers of the Services on an unpaid basis and that Swie may increase or decrease that limit in its sole and absolute discretion, with or without notice. It is further acknowledged and understood that Swie’s currently fixed upper limit (if any) on the amount of data the Customer may send or receive within or through the Services may be otherwise fixed, increased, decreased and/or eliminated by Swie in its sole and absolute discretion, with or without notice.
Some Customers with appropriate user roles may access their Swie account data via an API (Application Program Interface). Abuse or excessively frequent requests to Swie via the API may result in the temporary or permanent suspension of the account's access to the API. Swie, in its sole discretion, will determine abuse or excessive usage of the API. Swie will make a reasonable attempt via email to warn the account owner prior to suspension. Swie reserves the right at any time to modify or discontinue, temporarily or permanently, a Customer’s access to the API (or any part thereof) with or without notice.
5.1 The prices for the Products are EXW (Ex Works as per Incoterms 2010), unless otherwise expressly noted in the “Incoterms” section of the written quote. For all quotations and orders Incoterms 2010 shall apply.
5.2 Quotations by Swie via the online calculator are valid for a period of fifteen (15) minutes or until the user orders the item, whichever is sooner. Quotations by Swie via a written offer, unless otherwise stated in them, will be open for acceptance within seven (7) calendar days inclusive of the date of the quotation.
5.3 Swie shall have the right in respect of any uncompleted portion of the Contract to adjust its prices for any changes in the price of materials, parts, labor, transport, changes in work or delivery schedules or quantities or any other costs of any other kind arising for any reason after the date of the Contract. Price changes shall take effect on the date of service on the Customer’s notice of the change.
5.4 All invoices are payable without discount of any kind in the currency stated in the quote immediately upon reception. Reception is deemed to have taken place five (5) calendar days after the date of postage or three (3) calendar days after the date of email.
5.5 Notwithstanding the foregoing, for customers with a credit account (Net15, Net30 etc.), invoices are payable without discount of any kind in the currency stated in the quote in fifteen (15) calendar days of the date of Swie's invoice and in no circumstances shall the Customer be entitled to make any deduction or set-off or withhold payment for any reason at all, unless agreed to otherwise in the credit account agreement.
5.6 Without prejudice to any other rights of Swie if the Customer fails to pay the invoice price by the due date the Customer shall pay interest on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgment) on a daily basis at a rate of 24 % APR (definition as per directives 2008/48/EC and 2011/90/EU) and reimburse to Swie all costs and expenses (including administrative and legal costs) incurred in the collection of any overdue amount.
5.7 Swie may at its discretion deliver the Products by instalments in any sequence.
5.8 Where the Products are delivered by instalments, no default or failure by Swie in respect of any one or more instalments shall vitiate the Contract in respect of the Products previously delivered or undelivered Products.
5.9 Swie may deliver to the Customer and the Customer shall accept in satisfaction of the Contract a lesser or greater number than the number of Products ordered.
5.10 Any dates quoted by Swie for the delivery of the goods are approximate manufacturing days only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of Swie no regard has been paid to any quoted delivery dates.
5.11 If the Customer fails to take delivery of the Products or any part of them on the due date, and to provide any instructions or documents required to enable the Products to be delivered on the due date, Swie may on giving written notice to the Customer store or arrange for the storage of the Products, and on the service of the notice risk in the Products shall pass to the Customer, delivery shall be deemed to have taken place, and the Customer shall pay to Swie all costs and expenses including storage and insurance charges arising from its failure.
5.12 Swie shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause at all nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance of or repudiate the Contract.
5.13 Any claim for non-delivery of Products shall be notified in writing by the Customer to Swie within fourteen (14) calendar days of the date of Swie's estimated delivery date.
5.14 Any claim that any Products have been delivered damaged, are not of the correct quantity or do not comply with their description shall be notified by the Customer to Swie in seven (7) calendar days of their delivery.
5.15 Any alleged defect shall be notified by the Customer to Swie in seven (7) calendar days of the delivery of the Products or in the case of any defect which is not reasonably apparent on inspection in seven (7) calendar days of the defect coming to the Customer's attention and in any event in twelve (12) calendar months of the delivery of the Products.
5.16 Any claim under this condition must be in writing and must contain full details of the claim including the part numbers of any allegedly defective Products.
5.17 Swie shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the Customer shall promptly return all Products the subject of any claim securely packed and carriage paid to Swie for examination. Such Products returned for inspection shall be in the condition in which they were supplied and free of any components not supplied by Swie.
5.18 A claim for compensation for costs that occur through further processing, such as for example parts, surface mounting, assembly, testing, error checking, or damage to other modules or devices is explicitly prohibited, to the extent that such products and services were not provided by Swie.
5.19 If the Customer establishes that any Products have not been delivered, have been delivered damaged, are not of the correct quantity or do not comply with their description Swie shall, at its discretion, replace with similar products any Products which are missing, lost or damaged or do not comply with their description, allow the Customer credit for their invoice value or repair any damaged Products.
5.20 If the Customer establishes that any Products are defective Swie shall, as its discretion, replace with similar Products or repair any defective Products or allow the Customer credit for their invoice value. Swie reserves the right to make two attempts to remedy the defect or deliver a replacement. Replacements are deemed to include the delivery of comparable goods which are suitable for fulfilling the purpose for which the defective goods were intended. If Swie is not given adequate time and opportunity to remove the defect, we will be released from our warranty obligations with respect to the defect. If the remedial work or delivery of a replacement is unsuccessful, the customer is entitled, at its option, to a corresponding reduction of the purchase price or to withdrawal from the contract.
Any other or further claims of the customer, in particular as a result of consequential damage caused by defects, are excluded against Swie and its servants and any persons employed by it in the fulfilment of its obligations, unless the damage has been caused by intention or gross negligence.
5.21 The Customer understands that Products and Services of Swie are customized based on data provided by Customer. When the Customer places an order via Swie he expressly waives rights of cancellation, return and credit card chargebacks. If the Customer cancels an order the full amount of the order remains due.
6.1 Use of the Services requires that each Customer create and maintain a profile (a “Profile”) inclusive of the Customer’s current, accurate identification, contact, and other information that Swie considers necessary to maintain an appropriate experience for all Customers. Entity Customers must provide additional information, and must designate at least one individual user to manage and control the Profile of such Entity Customer. The Customer agrees that any registration information given to Swie will always be accurate, correct and up to date.
6.2 The Customer agrees to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions including, without limitation, any laws regarding the export of data or software to and from Switzerland or other relevant countries, in each case as may be amended from time to time, and any regulations issued thereunder.
6.3 The Customer agrees not to access or attempt to access any of the Services through any automated means such as web scrapers or any other data mining techniques or technology used to monitor and/or copy any of the web pages, data or content found on the Swie site.
6.4 The Customer agrees that he will not engage in any activity that interferes with or disrupts the Services or the servers and networks which are connected to the Services.
6.5 The Customer agrees to be solely responsible for, and that Swie has no responsibility to the Customer or to any third party for, any breach of his obligations under the Terms and for the consequences (including any loss or damage which Swie may suffer) of any such breach.
6.6 The Customer agrees not to use the Services in such a way as to violate any contractual or other obligation that he has to any third-party, including specifically, but without limitation, pursuant to any common or statutory law or administrative rule applicable to the Customer, or any confidentiality or non-disclosure agreement, non-competition or non-circumvention agreement, non-solicitation agreement, employment agreement, personal services or independent contractor agreement or agreement for the creation, transfer or restricted use of intellectual property.
6.7 Without limiting any of the preceding provisions of this Article 6 of these Universal Terms, the Customer agrees to use the Services only in accordance with Swie’s Acceptable Use Policy.
7.1 The Customer agrees and understands that he is responsible for maintaining the confidentiality of passwords associated with any Account he may use to access the Services. The Customer further agrees to use best practices such as using a unique password and other identity confirmation information, as requested by Swie, for this site.
7.2 Accordingly, The Customer agrees to be solely responsible to Swie for all activities that occur under his Account.
7.3 If the Customer becomes aware of any unauthorized use of his password or of his Account, he shall immediately notify Swie.
7.4 Swie’s facilities for storage and processing of Content will adhere to reasonable security standards no less protective than the security standards at facilities where Swie stores and processes its own information of a similar type. Swie has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Content, protect against anticipated threats or hazards to the security or integrity of Content, and protect against unauthorized access to or use of Content. As part of providing the Services, Swie may ordinarily transfer, store and process Content in Switzerland and EU or any other country in which Swie or its agents maintain facilities. Unless otherwise agreed, by using the Services, Customer consents to this transfer, processing and storage of Content.
8.3 The Customer agrees to comply with any applicable data usage and privacy policies implemented by any entity by which he is employed or for whom he performs services on a contract basis.
9.1 The Customer understands that all information (such as data files, schematics, circuit layout, technical drawings, technical specifications, written text, source code, software, firmware, illustrations, designs, photographs, videos or other images) (hereinafter “Content”) to which he may have access as part of, or through the use of, the Services are the sole responsibility of the Customer who makes such information available.
9.2 The display of schematics, circuit layout, technical drawings, technical specifications, source code, software and firmware (“Design Content”) on Swie.io, will includeA. the username(s) of the Customer(s) that provided such Design Content, and B. select comments of Customers regarding such Design Content. The comments submitted by Customers with respect to any Design Content may be monitored and censored by Swie.
The Customer acknowledges that Swie reserves the right to remove or modify any comments that Swie, in its sole and absolute discretion, deems inappropriate for any reason whatsoever.
9.3 The Customer is aware that sponsored Content and Content presented as part of advertisements (“Commercial Content”) by Swie, if any, may be protected by intellectual property rights which are owned by the sponsors, advertisers or other persons or companies who provide that Content to Swie or by other persons or companies on their behalf. The Customer may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Commercial Content either in whole or in part unless the Customer has received express written permission to do so from the owners of that Commercial Content.
9.4 Swie reserves the right (but shall have no obligation) to prescreen, review, flag, filter, modify, refuse or remove any or all Content from any Service.
9.5 The Customer understands that by using the Services he may be exposed to Content that he may find offensive, indecent or objectionable and that, in this respect, he uses the Services at his own risk.
9.6 The Customer agrees to be solely responsible for, and that Swie has no responsibility to the Customer or to any third party for, any Content that he creates, transmits or displays while using the Services and for the consequences of his actions, including any loss or damage which Swie may suffer, by doing so.
10.1 The Customer acknowledges and agrees that Swie or Swie’s licensors own all legal right, title and interest in and to the Services, including any intellectual property rights (“IP Rights”) which subsist in the Services, regardless of whether those rights have been registered or otherwise publicly recorded or recognized, and wherever in the world those rights may exist.
10.2 Unless the Customer has agreed otherwise in writing with Swie, nothing in the Terms gives the Customer a right to use any of Swie’s trade names, trademarks, service marks, logos, domain names and/or other distinctive brand features.
10.3 Other than the limited license set forth in this Article 10, Swie acknowledges and agrees that it obtains no right, title or interest from Customers (or their licensors) under these Terms in or to any Content that its Customers submit, post, transmit or display on, or through, the Services, including any IP Rights which subsist in that Content, regardless of whether those rights have been registered or otherwise publicly recorded or recognized, and wherever in the world those rights may exist. The Customer agrees to be responsible for protecting and enforcing those rights and that Swie has no obligation to do so on the Customer’s behalf.
10.4 The Customer agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services. The Customer further agrees not to use any trade mark, service mark, trade name or logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
10.5 Except where expressly provided otherwise herein, all comments, feedback, information or materials, other than Design Content, submitted by Customers to Swie through or in association with the Services (“Submissions”) shall be considered non-confidential and Swie’s sole property. By providing such Submissions, the Customer agrees to waive all copyrights and IP Rights to these Submissions, and assign to Swie, an unlimited, worldwide, exclusive, royalty-free, perpetual, irrevocable, transferrable license with respect to these copyrights and IP Rights. Swie shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose.
11.1 Other than with respect to Submissions, the Customer retains copyright and any other rights he already holds in Content which he may submit, post, store or display on or through, the Services. By publicly posting or displaying Content, the Customer gives Swie an unlimited, worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferrable license to reproduce, adapt, modify, translate, publish, publicly display and distribute such Content; provided, further, that, with respect to any Design Content the Customer publicly make available to or through Swie.io, the Customer grants Swie and each of its past, present and future Customers a perpetual, irrevocable, worldwide, transferrable, sublicensable, royalty-free, non-exclusive license to use, make derivative works from and incorporate such Design Content into the design, development, manufacture, sale, distribution or other exploitation of any product or product design.
11.2 The Customer understands that Swie.io, in performing the required technical steps to provide the Services to its Customers, may (a) store, transmit or distribute Content over various public networks and in various media; and (b) make such changes to Content as are necessary to conform and adapt that Content to the technical requirements of machinery, devices, services or media. The Customer hereby grants Swie a license to take these and other similar ministerial actions in respect of his Content for the purpose of providing the Services.
11.3 The licenses from the Customer to Swie, specified in this Article 11, extend to trusted third parties we work with to provide the Services, as well as to any affiliate of Swie or any entity that may acquire Swie in any merger or acquisition.
11.4 The Customer confirms and warrants to Swie that he shall have all the rights, power and authority necessary to grant the above licenses.
12.1 Notwithstanding anything to the contrary of these Universal Terms, solely with respect to Design Content presented to Customers through Swie.io, each of Swie and any Customer(s) that provided any such Design Content grants each Customer who accessed such Design Content a personal, worldwide, royalty-free and non-exclusive license to incorporate any such Design Content into the design, development, manufacture, sale, distribution or other exploitation of any product, which upon such incorporation may be used for any purpose.
12.2 The Customer understands and agrees that neither Swie nor any Customer makes any warranty of any kind whatsoever, whether express or implied, as to any Design Content, including specifically, but without limitation, any warranty as to the appropriateness of all or any portion of any Design Content for any specific use. The Customer further acknowledges and agrees to use of any Design Content is at his sole risk and hereby release, to the fullest extent allowed by applicable law, each of Swie and each of its other Customers from any liability of any kind whatsoever in connection with the use of any Design Content. Additionally, without limiting the generality of, and pursuant to, Article 14.1, the Customer shall indemnify, defend and hold harmless each of the Indemnified Parties (as defined below) from any claims, actions, losses or liabilities arising from, as a result of or in connection with the use of any Design Content, including specifically, but without limitation, any claims of product liability.
12.3 Some use of the Services requires the Customer to download a client software package (the “Software”). Swie grants Customers a limited, non-exclusive, non-transferable, revocable license to use the Software solely to access the Services. The license to use the Software will be automatically revoked if the Customer violates the Terms in a manner that adversely impacts Swie’s intellectual property rights, as determined by Swie in its own discretion. Swie reserves all rights in the Software not expressly granted in these Terms. The Customer must not reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, nor attempt to do so, nor assist anyone else to do so. Swie may update the Software on Customers’ devices automatically when a new version is available.
13.1 The Terms is valid in perpetuity until terminated by either the Customer or Swie as set out below.
13.2 The Customer is solely responsible for properly canceling his account. An email or phone request to cancel an account is not considered cancellation. The Customer may cancel his account at any time by logging into his account and clicking cancel account from the account profile page.
13.3 All personal information will be immediately deleted from the Service upon cancellation. This information cannot be recovered once an account is cancelled. Content created by the Customer may continue to exist and be made available through the website.
13.4 Swie may at any time, terminate its legal agreements with the Customer if:
A. the Customer has breached any provision of the Terms (or has acted in a manner which clearly shows that the Customer does not intend to, or is unable to comply with any provision of the Terms); or B. Swie is required to do so by law, regulation or administrative or court order (for example, where the provision of the Services to the Customer is, or becomes, unlawful); or C. any Third Party Service Provider with whom Swie offered the Services to the Customer has terminated the Services or ceased to offer the Services to the Customer; or D. Swie is transitioning to no longer providing the Services to Customers who reside in, or use Services from, a geographic area or jurisdiction; or E. the provision of the Services to the Customer by Swie is, in Swie’s opinion, no longer viable.
13.5 Nothing in this Article 13 shall affect Swie’s rights regarding provision of Services under Article 3.
13.7 Subject to Article 13.8, if Swie becomes aware of a Customer's violation of the Terms, Swie may provide such Customer with written notice of such Customer’s breach of the Terms. If the Customer does not cure such breach to Swie’s satisfaction within 10 calendar days following provision of such written notice, Swie may, in its sole and absolute discretion, indefinitely suspend and disable (a “Suspension”) and/or terminate the applicable Account. The duration of any Suspension by Swie will be until the applicable Customer has cured, to Swie’s satisfaction, the breach which caused the Suspension.
13.8 Notwithstanding Article 13.7, if there is an Emergency Security Issue, then Swie may automatically suspend the Account from which the Customer is/was committing the offending use. Swie will exercise reasonable efforts to limit the Suspension to the minimum extent and minimum duration required to prevent or terminate the Emergency Security Issue. “Emergency Security Issue” means either: (a) Customer's use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other Customers' use of the Services; or (iii) the Swie network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
13.9 When these Terms come to an end, all of the legal rights, obligations and liabilities that the Customer and Swie have benefited from, been subject to (or which have accrued over time while the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Article 22.7 shall continue to apply to such rights, obligations and liabilities indefinitely.
13.10 Upon the termination of an Account, Swie will close the Account and the user will no longer be able to retrieve Content contained in that Account.
13.11 In the event that an Account has no activity for a period of 180 days, Swie may, in its sole and absolute discretion, make the Profile no longer available for viewing, archive the Profile or delete the Profile from Swie.io in its entirety. Prior to taking any of these actions, Swie shall send a notice of such impending action by email to the address of the Account.
14.1 The Customer agrees to hold harmless, defend and indemnify Swie and its Subsidiaries and Affiliates, and each of their respective officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively “Indemnified Parties”) from and against any third-party claim arising from or in any way related to the Customer’s use of the Services, violation of the Terms or any other actions connected with use of the Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. Swie will provide the Customer with written notice of any claim, suit or action in respect of which any Indemnified Party will require indemnification. In the event that the Customer is required to defend any Indemnified Party in any suit or action, he may (subject to each such Indemnified Party’s right of approval, not to be unreasonably withheld) select counsel to provide such defense. Should he not respond to the notice, or fail to provide counsel within a reasonable amount of time, each Indemnified Party will be entitled to select its own counsel to conduct its defense. In any action in which the Customer and any Indemnified Party are each parties, either the Customer or such Indemnified Party may decide to have separate counsel, in which case, the Customer will be solely responsible for the expense of such counsel. In respect of any claim suit or action for which the Customer is indemnifying any Indemnified Party, he shall have the right to settle such case, so long as such settlement does not include any finding of fault, equitable relief or non-monetary compensation.
15.1 Nothing in these Terms, including Articles 15 and 16, shall exclude or limit Swie’s warranty or liability for losses which may not be lawfully excluded or limited by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract, breach of implied terms or incidental or consequential damages. Accordingly, only the limitations which are lawful in the jurisdiction of the Customer’s legal address will apply to the Customer and Swie’s liability to such Customer in that jurisdiction will be limited only as permitted by law.
15.2 The Customer expressly agrees that the use of the Services and any Design Content selected using the Services is at his sole risk and that the Services and such Design Content are provided “as is” and “as available.”
15.3 In particular, Swie, its Subsidiaries and Affiliates, its third party service providers, its licensors and its licensees, do not represent or warrant that:
A. The Customer’s use of the services will meet their requirements; B. The Customer’s use of the services will be uninterrupted, timely, secure or free from error; C. Swie, any third party service provider or any other person or company will store and maintain any particular Content, for any particular amount of time or in any particular manner; D. Any information obtained by the Customer as a result of his use of the Services will be accurate or reliable; or E. Defects in the operation or functionality of any Design Content or software provided to the Customer as part of the Services will be corrected.
15.4 Any material downloaded or otherwise obtained through the use of the Services is done at the Customer’s own discretion and risk and the Customer is solely responsible for any damage to his computer system or other device or loss of data that results from the download of any such material.
15.5 No advice or information, whether oral or written, obtained by the Customer from Swie or through or from the Services shall create any warranty not expressly stated in the Terms.
15.6 Swie further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
16.1 Subject to Article 15.1, above, the Customer expressly acknowledges and agrees that neither Swie nor any of its Subsidiaries and Affiliates, third party service providers, licensors or licensees shall be liable for:
A. Any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the Customer, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss;
B. Any loss or damage which may be incurred by the Customer, including but not limited to loss or damage as a result of: i. Any reliance placed by the Customer on the completeness, accuracy or existence of any Design Content or his use of any Design Content; ii. Any reliance placed by the Customer on the completeness, accuracy or existence of any advertising or any relationship or transaction between the Customer and any advertiser or sponsor whose advertising appears on or through the Services; iii. Any changes which Swie may make, or cause or permit to be made, to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services); iv. The deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through the Customer’s use of the Services; v. Failure to provide Swie with accurate account information; vi. Failure to keep password or account details secure and confidential; or vii. Any cause beyond Swie’s reasonable control, including, but not limited to, any act of force majeure, including, without limitation, any power failure, telecom or other internet outage or interruption, governmental action, fire, flood, insurrection, earthquake, acts of god, riot, explosion, act of terrorism, embargo, strike (whether legal or illegal), shortage of labor or material, transportation interruption of any kind or any work slowdown.
C. Any damages in excess of the amount that Swie has received from the Customer in payment for the Products and Services during the three (3) months prior to the date upon which the Customer gives Swie notice of the applicable loss or damage, or the amount that Swie has received from the Customer in payment for invoices which contain all Products and Services causing the applicable loss or damage, whichever is less.
16.2 Swie is not responsible for the actions, content, information, or data of third parties, and the Customer shall release Swie, its principals, officers, directors, affiliates, employees and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim against any such third parties.
16.3 The limitations on Swie’s liability in Article 16.1 above shall apply whether or not Swie has been advised of or should have been aware of the possibility of any such losses arising.
17.1 Swie’s policy is to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law and to terminate the Accounts of repeat infringers.
18.1 Some of the Services may display advertisements and promotions. These advertisements may be targeted to Content or information stored on the Services, queries made through the Services or other information.
18.2 The manner, mode and extent of advertising by Swie on the Services are subject to change without specific notice.
18.3 In consideration for Swie granting access to and use of the Services, the Customer agrees that Swie may place such advertising on the Services.
18.4 As part of the Services, Swie may provide access to Content, including articles on this site that contain links to other resources and businesses. Those links are provided as citations and aids to help Customers identify and locate other resources that may be of interest and are not intended to state or imply that Swie sponsors, endorses, is affiliated or associated with, guarantees or is legally authorized to use any trade name, registered trademark, logo, legal or official seal or copyrighted symbol that may be reflected in the links.
19.1 The Services may include hyperlinks to other websites or content or resources. Swie may have no control over any websites or resources which are provided by companies or persons other than Swie.
19.2 The Customer agrees that Swie is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources.
19.3 The Customer agrees that Swie is not liable for any loss or damage which may be incurred by him as a result of the availability of those external websites or resources, or as a result of any reliance placed by him on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.
20.1 Swie may make changes to the Universal Terms or Additional Terms from time to time. When changes are made, Swie will make a copy of any such changes available Customers from within, or through, Swie.io and/or the affected Services.
20.2 The Customer agrees that if he uses the Services after the date on which the Universal Terms or Additional Terms have changed, Swie will treat such use as acceptance of such updated Universal Terms or Additional Terms.
20.3 In the event that Swie believes that any change in Terms will result in a material change to Customers’ rights in respect of use of the Services, Swie may provide Customers with a written notice of the change in the Terms a reasonable amount of time prior to the effective time of the Terms as changed. Notwithstanding the previous sentence, a lack of notice from Swie shall not invalidate the effectiveness or timing of any change in the Terms.
21.1 Where Swie has provided a translation of the English language version of the Terms, it is agreed that the translation is provided for reference only and that the English language version of the Terms shall prevail.
22.1 The Terms (including any policies, guidelines, legal notices or amendments that may be presented from time to time) constitute the entire agreement between the Customer and Swie and govern the use of Services, superseding any prior agreements between the Customer and Swie for the use of Services. The Customer may be subject to Additional Terms that apply when using certain features of the Services. Nothing in the Terms relieves the Customers from any obligations applicable to his license or use of any third-party content or software.
22.2 The Customer agrees that Swie may provide notices, including those regarding changes to the Terms, by email, regular mail or postings within or through the Services.
22.3 The Customer agrees that if Swie does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Swie has the benefit of under any applicable law), this will not be taken to be a formal waiver of Swie’s rights and that those rights or remedies will still be available to Swie. Additionally, Swie’s waiver of any of the Terms shall in no way require Swie to waive any such Term(s) thereafter.
22.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then, in that jurisdiction only, that provision will be limited to the minimum extent required (including removal if necessary) to make such provision valid and enforceable (unless it has been removed). Limitation or removal of a term in one or more particular jurisdiction(s) shall not result in such limitation or removal in any other jurisdiction(s), to the maximum extent possible. No limitation or removal of any provision of the Terms pursuant to this Article 22.4 shall affect any of the other Terms (in any jurisdiction), all of which will continue to be valid and enforceable.
22.5 The Customer agrees that each Subsidiary and Affiliate and Third Party Service Provider shall be a third-party beneficiary to the Terms and as such shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) such party. Other than this, no other person or Entity shall be a third-party beneficiary to the Terms.
22.6 The Terms, and the Customer’s relationship with Swie under the Terms, shall be governed by the laws of the Canton of Vaud of Switzerland without regard to its conflict of laws provisions. The Customer and Swie agree to submit to the exclusive jurisdiction of the courts located in Lausanne, Switzerland to resolve any legal matter arising from the Terms. Notwithstanding the foregoing, the Customer agrees that Swie shall be entitled to seek injunctive remedies (or an equivalent type of urgent legal or equitable relief) in any jurisdiction without placing a bond. The prevailing party in any dispute based upon the Terms submitted to any court, or for arbitration, shall be entitled to reimbursement of their fees and costs, including costs of investigation and reasonable attorney’s fees.
22.7 The Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
22.8 The Customer is responsible for responding to Third Party Requests. Swie will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify the Customer of its receipt of a Third Party Request and (b) comply with the Customer’s reasonable requests regarding his efforts to oppose a Third Party Request. The Customer will first seek to obtain the information required to respond to the Third Party Request on his own and will contact Swie only if he cannot reasonably obtain such information. “Third Party Request” means a request from a third party for records relating to the Customer’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena or other valid legal order.