modified as of 24 June 2022
These terms and conditions (the “Terms”) govern the use of the Swarm Application (the “Application”), and any other related Agreement or legal relationship with Swarm Tech Inc. (the “Owner”) and is legally binding for all users (the “User”) of the Application, whether or not they choose to sign up as a member of the Application.
Capitalized words are defined in the relevant dedicated section of this document.
The User must read this document carefully.
Any other contract or agreement entered into between the Owner and the Users for a specific project (a “Project”) shall be governed by these Terms in a suppletory manner, however; in the event of a conflict between the terms thereof and these Terms, the terms of the contract or agreement shall prevail over the provisions of these Terms but only insofar as the Project is concerned, and not the general use of or access to the Application.
Nothing in these Terms shall be construed to create any relationship of employment, agency, or partnership between the involved Owner and the Users.
The Application is operated by the owner, and all intellectual property associated with it. You may contact the Owner as follows:
Swarm Tech Inc.
1524 Mariposa Way, Fairfield CA 94533
The Application refers to -
Please note that some provisions in these Terms may only apply to certain categories of Users, or when Users purchase Products and/or Services through the Application.
The Application helps Users to find other Users to collaborate and work with for certain projects or to create content. To this end, the Application helps select best matching community members and introduces them to Users. When a contract between the Seller and the User is concluded, the Owner shall charge a fee for the use of the Application i.e. the Platform Fee, as discussed below.
By accepting the Terms, Users fully and unconditionally release and forever discharge the Owner, its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with:
The Application merely serves as a technical infrastructure or application to allow Users to interact with each other. The Owner therefore is not directly involved in any such interactions between Users.
These Terms apply to the described usage of the Application only. Unless otherwise stated, these Terms also apply to transactions between Users by reference. However, this does not imply that the Owner is a party to such transactions.
To use the Application, Users must register or create a User account, providing all required data or information in a complete and truthful manner.
Users are solely responsible for keeping their login credentials confidential and safe. For this reason, Users should choose passwords that meet the highest standards of strength permitted by the Application. Users agree to be fully responsible for all activities that occur under their username and password.
Users are required to immediately and unambiguously inform the Owner via the contact details indicated in this document, if they think their personal information, including but not limited to User accounts, access credentials or personal data, have been violated, unduly disclosed, stolen, or compromised.
Registration of User accounts on the Application is subject to the conditions outlined below. By registering, Users agree that they meet the following conditions:
Users can terminate their account and stop using the Application at any time by directly contacting the Owner at the contact details provided in this document.
The Owner reserves the right, at its sole discretion, to suspend or delete at any time and without notice, User accounts which it deems inappropriate, offensive or in violation of these Terms.
The suspension or deletion of User accounts shall not entitle Users to any claims for compensation, damages or reimbursement. The suspension or deletion of accounts due to causes attributable to the User does not exempt the User from paying any applicable fees or charges.
Unless otherwise specified or clearly recognizable, all content available on the Application is owned by or provided by the Owner or its licensors (“Swarm Content”), except for content directly shared, posted or provided by Users (“User Content”).
The Owner undertakes to exert commercially reasonable efforts to ensure that Swarm Content is not restricted or does not infringe any applicable legal provisions or third-party rights, User understands that it may not always be possible to achieve such a result. In such cases, without prejudice to any legal prerogatives of Users to enforce their rights, Users are kindly asked to preferably report related complaints using the contact details provided in this document. This undertaking does not apply to User Content, which shall be the sole responsibility of the User.
The Owner holds and reserves all intellectual property rights for the Swarm Content. Users may not therefore use Swarm Content in any way that is not necessary or implicit in the proper use of the Application and contrary to these Terms.
In particular, but without limitation, Users may not copy, download, share (beyond the limits set forth below), modify, translate, transform, publish, transmit, sell, sublicense, edit, transfer/assign to third parties or create derivative works from the content available on the Application, nor allow any third party to do so through the User or their device, even without the User's knowledge.
Where explicitly stated on the Application, the User may download, copy and/or share some content available through the Application for his/her sole personal and non-commercial use and provided that the copyright attributions and all the other attributions requested by the Owner are correctly implemented. Any applicable statutory limitation or exception to copyright or any applicable intellectual property right shall stay unaffected.
The Owner allows Users to upload, share or provide User Content on the Application.
By providing or sharing User Content on the Application, Users confirm that they are legally allowed to do so and that they are not infringing any statutory provisions and/or third-party rights.
Users acknowledge and accept that by sharing, posting, or providing User Content on this Application they grant the Owner a non-exclusive, fully paid-up and royalty-free license to process such content solely for the operation and maintenance of the Application or as contractually and statutorily required. To the extent permitted by applicable law, Users waive any moral rights in connection with their User Content.
Users acknowledge, accept and confirm that all of his/her User Content is provided subject to the same general conditions set forth for all other content on the Application.
Users are solely liable for any content they upload, post, share, or provide through the Application. Users acknowledge and accept that the Owner does not filter or moderate such content.
However, the Owner reserves the right to remove, delete, block or rectify such content at its own discretion and to, without prior notice, deny the uploading User access to the Application:
The removal, deletion, blocking or rectification of User Content shall not entitle Users that have provided such content or that are liable for it, to any claims for compensation, damages or reimbursement.Users agree to indemnify and hold the Owner harmless from and against any claim asserted and/or damage suffered due to any content they provided to or provided through the Application.
Through this Application, Users may have access to external resources provided by third parties. Users acknowledge and accept that the Owner has no control over such resources and is therefore not responsible for their content and availability.
Conditions applicable to any resources provided by third parties, including those applicable to any possible grant of rights in content, result from each such third parties’ terms and conditions or, in the absence of those, applicable statutory law.
If copyright holders or their agents believe that any content on the Application infringes upon their copyrights, they may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing the Owner’s Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
Failure to comply with all of the requirements outlined above may result in invalidity of the DMCA notice. Copyright infringement notifications may be submitted to the Owner’s Copyright Agent at the following address: email@example.com
The Application may only be used within the scope of what they are provided for, under these Terms and applicable law. Users are solely responsible for making sure that their use of the Application violates no applicable law, regulations or third-party rights. Therefore, the Owner reserves the right to take any appropriate measure to protect its legitimate interests including by denying Users access to this Application, terminating contracts, reporting any misconduct performed through this Application to the competent authorities – such as judicial or administrative authorities - whenever Users engage or are suspected to engage in any of the following activities:
Disclaimer of Warranties
The Application is provided strictly on an “as is” and “as available” basis. Use of the Application is at Users’ own risk. To the maximum extent permitted by applicable law, the Owner expressly disclaims all conditions, representations, and warranties — whether express, implied, statutory or otherwise, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights.
No advice or information, whether oral or written, obtained by User from Owner or through the Application will create any warranty not expressly stated herein. Without limiting the foregoing, the Owner, its subsidiaries, affiliates, licensors, officers, directors, agents, co-branders, partners, suppliers and employees do not warrant that the content is accurate, reliable or correct; that the Application will meet Users’ requirements; that the Application will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Application is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Application is downloaded at users own risk and users shall be solely responsible for any damage to Users’ computer system or mobile device or loss of data that results from such download or Users’ use of the Application.
The Owner does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Application or any hyperlinked website or service, and the Owner shall not be a party to or in any way monitor any transaction between Users and third-party providers of products or services.
The Application may become inaccessible or it may not function properly with Users’ web browser, mobile device, and/or operating system. The Owner cannot be held liable for any perceived or actual damages arising from Application content, operation, or use of the Application Service.
Limitations of liability
To the maximum extent permitted by applicable law, in no event shall the Owner, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees be liable for --
This limitation of liability section shall apply to the fullest extent permitted by law in the applicable jurisdiction whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if company has been advised of the possibility of such damage.
Without prejudice to the foregoing, the total liability of Owner, its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees, for any claims under the terms including for any express or implied warranties, is limited to the amount paid by User to Owner to use the Application hereunder in the preceding 12 months, or the period of duration of this agreement between the Owner and User, whichever is shorter.
The User agrees to defend, indemnify and hold the Owner and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees harmless from and against any and all claims or demands, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, legal fees and expenses, arising from
The Owner’s failure to assert any right or provision under these Terms shall not constitute a waiver of any such right or provision. No waiver shall be considered a further or continuing waiver of such term or any other term.
To ensure the best possible service level, the Owner reserves the right to interrupt or temporarily shut down the Application for maintenance, system updates or any other changes. The Owner may or may not, in its own discretion, inform the Users of such interruption.
Within the limits of law, the Owner may also decide to suspend or terminate the Application altogether. If the Application is terminated, the Owner will cooperate with Users to enable them to withdraw Personal Data or information in accordance with applicable law.
Additionally, the Application might not be available due to reasons outside the Owner’s reasonable control, such as “force majeure” (e.g. labor actions, infrastructural breakdowns or blackouts, war, earthquakes, floods, hurricanes, tsunamis, and other natural disasters, and the like which events are not within the reasonable control of Owner).
Users may not reproduce, duplicate, copy, sell, resell or exploit any portion of the Application and of its Service without the Owner’s express prior written permission, granted either directly or through a legitimate reselling program.
Intellectual property rights
Without prejudice to any more specific provision of these Terms, any intellectual property rights, such as copyrights, trademark rights, patent rights and design rights related to this Application are the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties relating to intellectual property.
All trademarks — nominal or figurative — and all other marks, trade names, service marks, word marks, illustrations, images, or logos appearing in connection with this Application are, and remain, the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties related to intellectual property.
Changes to these Terms
The Owner reserves the right to amend or otherwise modify these Terms at any time. In such cases, the Owner will appropriately inform the User of these changes. Such changes will only apply prospectively. The continued use of the Application will signify the User’s acceptance of the revised Terms. If Users do not wish to be bound by the changes, they must stop using the Application. Failure to accept the revised Terms, may entitle either party to terminate the Agreement. The applicable previous version will govern the relationship prior to the User's acceptance. The User can obtain any previous version from the Owner.
The Owner reserves the right to transfer, assign, dispose of by novation, or subcontract any or all rights or obligations under these Terms, taking the User’s legitimate interests into account. Provisions regarding changes of these Terms will apply accordingly.
Users may not assign or transfer their rights or obligations under these Terms in any way, without the written permission of the Owner.
All communications relating to the use of this Application must be sent using the contact information stated in the Terms.
These Terms constitute the entire agreement between Users and the Owner with respect to the subject matter hereof, and supersede all other communications, including but not limited to all prior agreements, between the parties with respect to such subject matter. These Terms will be enforced to the fullest extent permitted by applicable law. Should any provision of these Terms be deemed or become invalid or unenforceable under applicable law, the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
These Terms are governed by the law of the State of Delaware, without regard to conflict of laws principles and rules.
Venue of jurisdiction
The exclusive competence to decide on any controversy resulting from or connected to these Terms lies with the courts of the State of Delaware.
Users may bring any disputes relating to the use of the Application to the Owner who will try to resolve them amicably. While Users' right to take legal action shall always remain unaffected, in the event of any controversy regarding the use of this Application or the Service, Users are kindly asked to contact the Owner at the contact details provided in this Terms. The User may submit the complaint including a brief description and if applicable, the details of the related order, purchase, or account, to the Owner’s email address specified in this Terms. The Owner will process the complaint without undue delay and within 21 days of receiving all relevant information relating to it.
This Agreement shall continue in effect until it is terminated by the Owner or by the User, and or through the termination, or cancellation of the Application. Upon termination, the provisions contained in these Terms that by their context are intended to survive termination or expiration will survive, including but not limited to the following:
The following terms apply when a User purchases products or services through the Application, or enters into contract with other Users. To the extent allowed under applicable law, the succeeding terms apply when Users contract with other Users without signing a written agreement, or, suppletorily when the Users sign a document covering indicating the scope of the work (the “Project Proposal”), or when the Users sign a separate written agreement, to the extent not conflicting with the succeeding terms, unless the parties expressly indicate that the succeeding terms should not govern their transaction.
The Application allows Users i.e. founders and freelancers to propose and collaborate on projects (the “Project”) through the Application. When Users decide to engage other Users for these Projects, they agree that their collaboration is a contract and is governed by these Terms and the Project Proposal, which should be signed by the Users before starting the Project. The Project Proposal shall provide (i) a detailed description of the Project, and the specific deliverables, if any, required, (ii) timeline for the Project, and (iii) project fees and costs.
Users should remember that this contract (the “Service Agreement”) is between them, and Owner is not a party to this Service Agreement, although the Service Agreement is subject to these Terms, unless Owner has a direct contractual relationship with the Users for a Project or undertaking in relation to the Application, in which case, these general terms will also apply absent a separate written agreement between the Users and Owner. As such, except for the payment of the Platform Fee (described below), any rights and obligations which may arise in relation to the Service Agreement between the Users shall be solely between them.
Unless agreed otherwise under the Service Agreement or under the Project Proposal, when Users enter into a contract with each other, the following general terms and conditions apply.
When entering a contract with other Users, the Users represent and warrant that:
Any intellectual property rights on a material (the “Works”) created in the course of the Project shall be governed by the following provisions:
In the spirit of collaboration, the Contractors acknowledge that they will have access to confidential information regarding the Client and his/her/its business. It is therefore agreed that Contractor will not, during or subsequent to the term of the Project, divulge, furnish or make accessible to any person (other than with the written permission of the Client) any confidential information or confidential plans of the Client with respect to the company or its business, including, but not limited to, the products and practices of the Client (“Client Confidential Information”).
The Contractor shall not make any copy, abstract, or summary of the whole or part of any document belonging to the Client, its subsidiaries and affiliates, except in the proper performance of the Service Agreement. The Contractor hereby acknowledge that all Client Confidential Information shall remain at all times the exclusive property of the Client and that Contractors will surrender all such information, including any materials related thereto which Contractors possess or over which Contractors have control, to the Client immediately upon the termination of the Service Agreement or at any time prior thereto upon the request of the Client. The provisions under this clause shall survive the termination or cancellation of the Project or the agreement between the Users.
Any violation of the foregoing shall be cause for immediate termination of the Service Agreement, and may be a basis for User to be removed from the Application.
Users agree that when collaborating on a project, they do so under an independent contractor arrangement, and neither party shall be considered an employer or employee of the other, or of the Owner. Nothing herein contained shall create or shall be deemed to create any relationship of agency, partnership, or joint venture between the Users, the Client, the Contractor, and/or the Owner.
As independent contractors, the Contractor/s shall not be subject to any non-compete arrangement. However, for purposes of transparency, should the Contractor be engaged by any third party in the same line of business as Client’s business, the Contractor undertakes to inform the Client of such engagement. In the event Client wishes to have a non-compete arrangement for the Project, such must be clearly indicated in the Project Proposal.
As a general rule, the Service Agreement between Users are personal, as such, neither party shall assign the Service Agreement without the prior written consent of the other Parties’, which consent shall not be unreasonably withheld or delayed. Once properly assigned, this Agreement shall be binding on the successors in title and permitted assigns of the Parties hereto.
The Application enables individuals to collaborate on meaningful projects and when Users agree to enter into a contract with other Users, they make a contractual commitment to adhere to its terms and deliver the deliverables under the Project Proposal. By entering into a contract with the Client, Contractor agrees to devote such time and effort as is reasonably required for the Project. Moreover, Contractor agrees to comply with all applicable laws, rules, and regulations relating to or affecting the performance of the Project and the services required for the deliverables.
The Contractors shall not, without the prior written consent of the Client, make any offer, enter into any letter of intent, contract or legally binding commitment on behalf of the Client, engage the services of third parties or delegate the whole or a part of the Services to any third party, unless expressly agreed in writing with the Client.
The Contractors shall refrain from taking any action or making any statements, written or oral, which are intended to and do demonstrably and materially damage, or be prejudicial and detrimental to the interests of, the Client, its directors, officers, employees or shareholders.
The Service Agreement is binding from the date written in the Project Proposal (the “Effective Date”) and shall continue until completion of the Project, or any amendments, renewals, or extensions thereof, or until terminated in accordance to the succeeding clauses.
Either the Client or the Contractor may pre-terminate this Agreement prior to its expiry by giving the other party at least fifteen (15) days written notice, or immediately, in case of violation of any of the terms of the Service Agreement and the Project Proposal, and/or these Terms.
In case the terminating party is the Contractor, the termination shall only be effective when Contractor is able to turn over all materials relating to the work done prior to the effective date of the termination. Contractor understands that Client, or Owner, may withhold the payment of any fees that may be due to Contractor for services rendered prior to the termination until and unless turnover of these deliverables has been completed to the reasonable satisfaction of the Client. In case the terminating party is the Client, the Client shall have no further obligation to make any payment to Contractors except for services rendered prior to the effective date of termination.
In case the Service Agreement between the Contractor and Client expires without being renewed in writing and the Contractor/s continues to work on the Project, this Agreement shall be deemed renewed on a month-to-month basis until the parties execute a formal renewal agreement or one Party notifies the other Party of its intent not to renew the Service Agreement by giving at least 15 days’ prior written notice of such intent.
Contractors shall not be entitled to the privileges and benefits granted to the Client’s employees. However, the Contractors shall be entitled to the fees provided in the Project Proposal (the “Contractors Fees”). Reasonable and adequately documented out of pocket expenses incurred in connection with this Agreement shall be shouldered by the Client, provided that said expenses have been pre-approved by the company officer to whom Contractors reports.
Additionally, Owner shall bill the Client for the use of the Application, the following fees:
20% of the Project Cost indicated in the Project Proposal for every new Project
5% for every new project, project renewals, or project amendments (including Change Orders, extensions, and other changes resulting to any modifications in the Project Cost)
When payment for the Project Cost is made to Owner directly, Client and Contractor agree that Owner shall deduct the Platform Fee before remitting any Contractor Fees. In the event the fees for any new Project, renewals or amendments is made directly to the Contractor, the Contractor and the Client shall be responsible in ensuring that the Platform Fee is paid to Owner within seven (7) days from the start of the Renewal, contract amendment or extension period. Without prejudice to any other remedies under substantive law and equity, failure to pay the Platform Fee within this period entitles Owner to terminate or suspend the Users’ accounts, as well as withhold any payment or fees which may be due to the Users for other transactions until payment of the Platform Fee has been made.
A party shall not be considered to be in default or breach of the Service Agreement, and shall be excused from performance or liability for damages to any other party, if and to the extent it shall be delayed in or prevented from performing or carrying out any of the provisions of the Service Agreement, arising out of or from any act, omission, or circumstance by or in consequence of any act of God, labor disturbance, sabotage, failure of suppliers of materials, act of the public enemy, war, invasion, insurrection, riot, fire, storm, flood, ice, earthquake, explosion, epidemic, or any other cause or causes beyond such party’s reasonable control, including any lockdown, or restriction imposed by governmental authorities (a “Force Majeure Event”). Any party claiming a Force Majeure Event shall use reasonable diligence to remove the condition that prevents performance and shall not be entitled to suspend performance of its obligations in any greater scope or for any longer duration than is required by the Force Majeure Event. Each party shall use its best efforts to mitigate the effects of such Force Majeure Event, remedy its inability to perform, and resume full performance of its obligations hereunder.
The Service Agreement shall be construed, interpreted and governed under the laws of the State of Delaware. The Parties agree to exert all commercially reasonable efforts to first settle their disputes amicably. However, in the event this fails, any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules (the “Arbitration Rules”) as presently in force. Should the dispute involve an amount estimated to be above USD1,000,000, the Parties agree that the number of arbitrators shall be three (3), with each party appointing their arbitrator and the third arbitrator appointed by both arbitrators. Should the dispute involve an amount estimated to be at USD1,000,000 or below, the Parties agree to have one (1) arbitrator appointed by both parties, or selected in accordance with the Arbitration Rules. The language of the arbitration shall be English. The venue of the arbitration shall be the country where any of the parties are residing at the time of the institution of the arbitration, at the option of the party seeking the relief.