SwiftSend Services Customer Agreement
This agreement defines the terms and conditions for use of SwiftSend website based secure electronic document and drawing delivery services provided and hosted by SwiftView, Inc. (COMPANY). Use of the SwiftSend service constitutes acceptance by CUSTOMER of this agreement. The term "CUSTOMER" shall, when the context permits, include CUSTOMER's officers, employees, agents and contractors.
1. Services Provided. COMPANY operates an online, interactive document delivery system (the "System") based on its proprietary technology and used by its customers to send documents/files through the Internet to their designated recipients, utilizing SSL encryption (the "Services").
Subject to the terms and conditions of this Agreement, COMPANY hereby grants each individual User employed by CUSTOMER a nonexclusive, nontransferable license to use the System during the Term. Such a license is for use rights only and does not include the right to copy, modify, decompile, or reverse engineer any software that CUSTOMER may use or access hereunder. Such a license to any particular individual user is immediately terminated as soon as that individual is no longer employed by CUSTOMER.
2. Content. CUSTOMER shall not post or transmit any unlawful, unsolicited, threatening, abusive, libelous, defamatory, profane or illegal material, or material containing blatant expressions of bigotry, racism or hate, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation, including without limitation United States export control laws and regulations.
3. No Harmful Usage. CUSTOMER shall not abuse or fraudulently use the System in any way. Abusive usage includes, but is not limited to, violations of privacy, actions that cause damage or injury to Company or any third party, the sending of unsolicited messages, including the sending of "junk mail" or other advertising material to individuals who did not specifically request such material (e.g., "spamming"), the intentional creation of or forwarding "chain letters" or other "pyramid schemes" of any type. CUSTOMER shall not knowingly post or transmit any information which contains a virus or other harmful component.
4. Protected Materials. CUSTOMER shall not upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the System which is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder, and shall not upload, post, publish, reproduce, transmit or distribute in any way any component of the System itself or derivative works with respect thereto.
5. Right to Monitor and Control Content. CUSTOMER agrees that COMPANY has the right to monitor the System electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the System properly, or to protect itself or its users. COMPANY reserves the right (but is not obligated) to refuse to post or to remove any information or materials, in whole or in part, that, in COMPANY's sole discretion, are unacceptable, undesirable, or in violation of this Agreement.
6. Warranty. COMPANY represents that COMPANY owns all legal rights to the SwiftSend software and that to its knowledge it does not infringe on any third parties, property or personal rights.
7. Disclaimer of Warranty. Except as set forth in Section 6 above, the Services and System are provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title or noninfringement or implied warranties of merchantability or fitness for a particular purpose or use. Neither COMPANY nor any of its affiliates, contractors, agents or vendors, or their respective employees, warrants that the Services or the System will be uninterrupted or error free or that any information, software or other material accessible on the System is free of viruses, worms, cancelbots, Trojan horses or other harmful components; nor does COMPANY or its employees, or any of its affiliates, contractors, agents or vendors make any warranty as to the results to be obtained from the Services or use of the System. No advice or information given by COMPANY or its employees, or its affiliates, contractors, agents, or vendors or their respective employees shall create a warranty. Neither COMPANY nor its employees, nor any of its affiliates, contractors, agents or vendors, or their respective employees, makes any express or implied warranties or representations with regard to any information or material on the System, regardless of its sources.
8. Limitation of Liability. Neither COMPANY nor its employees, nor any of its affiliates, contractors, agents or vendors, or their respective employees, shall be liable for any direct, indirect, incidental, special, punitive, or consequential damages caused or allegedly caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communications line failure, theft or destruction or unauthorized access to, alteration of or use of records, or otherwise caused or allegedly caused by use of the System or inability to use the System whether for breach of warranty, tortious behavior, negligence, or under any other cause of action. Neither COMPANY or its employees, nor any of its affiliates, contractors, agents or vendors, or their respective employees, shall be liable in any way for any damages that result in any way from CUSTOMER'S or any third party's reliance on or use of information and services provided on or through the System. The provisions of this Section 8 will survive any termination of this Agreement. CUSTOMER'S sole and exclusive remedy for any cause of action based on the subject matter of this Agreement is to terminate this Agreement effective immediately.
9. Third Party Products and Services. CUSTOMER is responsible for providing equipment and services necessary to utilize the System except as set forth in this Agreement. COMPANY shall provide only the Services set forth in this Agreement and COMPANY is not responsible in any way for information or services provided by third parties.
10. Indemnity. Each party shall defend, hold harmless and indemnify the other with respect to any actions, losses, damages, reasonable costs or expenses (including attorney's fees) arising out of or relating to a breach of the terms of this Agreement by the indemnifying party.
CUSTOMER shall defend, hold harmless and indemnify COMPANY with respect to any actions, losses, damages, reasonable costs or expenses (including attorney's fees) arising out of or relating to (a) the placement or transmission of any message, information, documents or other materials on the System by CUSTOMER, (b) negligent acts or omissions of CUSTOMER in connection with the installation of equipment or software not provided by COMPANY which are connected or are to be connected to the System, (c) third-party claims resulting from failure of CUSTOMER to use the System properly and securely, and (d) claims for infringement of patents arising from the use of equipment and software not provided by COMPANY in connection with the Services and the System.
COMPANY shall defend, hold harmless and indemnify CUSTOMER with respect to any actions, losses, damages, reasonable costs or expenses (including attorney's fees) arising out of or relating to a claim that its products used within the scope of this Agreement infringe a United States patent or copyright, provided that CUSTOMER notifies COMPANY promptly in writing of the action and all prior claims relating to such action. COMPANY shall have sole control of the defense and all negotiations for its settlement or compromise. If an infringement is determined by a court of competent jurisdiction, COMPANY may, at its own expense and discretion, license technology from a third party or modify the product to remove the infringement.
The foregoing states the entire liability of COMPANY with respect to infringement of any patent or copyright by COMPANY products or any part thereof.
11. Right to Restrict Access. COMPANY may deny CUSTOMER and third parties access to all or part of the System without notice if CUSTOMER engages in any conduct or activity that violates any of the terms and conditions in this Agreement. If COMPANY denies access to the System because of such a violation, CUSTOMER and third parties shall have no right to access any materials stored on the System, and COMPANY shall have no obligation to notify any third parties of the restriction of CUSTOMER'S or third parties' access to the System or any responsibility for any consequences resulting from the restriction of access or the lack of notification to third parties.
12. Security. Access to the System and to certain online transactions involves the use of user names, passwords, or other individualized nonpublic information ("Private Documentation"). CUSTOMER shall use its best efforts to prevent unauthorized use of the System or of any Private Documentation, and shall promptly report to COMPANY any suspected unauthorized use or other breach of security. CUSTOMER shall be responsible for any unauthorized use of its user names or passwords until COMPANY receives written notice of a breach of security and a request to block further access for such numbers and passwords.
13. Protection of Software. COMPANY may provide to CUSTOMER certain software, including third-party software, for use with the System (the "COMPANY Software"). All COMPANY Software provided to CUSTOMER, and each revised version thereof, is licensed to CUSTOMER only for use in connecting to and using the System. Use or copying for any other purpose is prohibited and is a breach of this Agreement. The COMPANY Software files remain the property of COMPANY or its vendors at all times. This license to use COMPANY Software will terminate upon termination of this Agreement. At that time the CUSTOMER must return the COMPANY Software to COMPANY or destroy it. COMPANY, or third parties, may provide CUSTOMER with additional software that may be used by CUSTOMER, subject to the terms of applicable licenses. CUSTOMER agrees to abide by the terms of all such software licenses.
14. Term and Termination. At the time of enrollment, CUSTOMER agrees to a monthly payment interval. This Agreement shall remain in effect for that period, and shall be automatically renewed for successive intervals, unless either party gives 30 days written notice of cancellation. Either party shall have the right to terminate this Agreement immediately in the event of a breach of any of its terms by the other party. In such event, neither party may make claims for damages due to termination. Either party may terminate the Agreement without cause upon giving 30 days written notice to the other party.
15. Payment. In consideration of the Services, Customer agrees to pay the agreed upon fees according to the then current price schedule. If credit card information has been provided, COMPANY is authorized to charge this credit card for all payments due; otherwise COMPANY will invoice Customer for the Services on a monthly basis, and all amounts due, unless otherwise specified by COMPANY, are due and payable 30 days from the date of invoice. Amounts not paid when due will bear a late payment charge of 1.5 percent per month. COMPANY reserves the right to terminate services for failure to pay on a timely basis, with no recourse for CUSTOMER to recover data until payment is received in full.
16. Confidentiality. Both parties acknowledge that they will have access to certain information and materials concerning each other's businesses, technology, customers and/or products that is confidential and of substantial value, which value would be impaired if such information were disclosed to third parties ("Confidential Information").
Both parties agree they will not use in any way for their own account or the account of any third party, nor disclose to any third party, any such Confidential Information of the other and will protect the confidentiality of such information with the same degree of care which each uses to protect its own Confidential Information, using no less than a reasonable degree of care.
Such use and non-disclosure obligations shall not apply to information which (a) was already rightfully known to the party prior to disclosure by the other party hereunder; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the other party; (c) has been rightfully received from a third party not under obligation of confidentiality; (d) has been rightfully approved for release by written authorization; (e) was independently developed by a party to this Agreement or (f) is required to be disclosed by law. Confidential Information shall not be disclosed except as otherwise required by law, and shall only be used for the specific purposes contemplated by this Agreement. It shall be an event of default if either party breaches its confidentiality obligations as stated herein. Termination or expiration of this Agreement does not relieve duties of confidentiality as herein described, said duties of which survive termination.
17. Entire Agreement; Guidelines. These terms and conditions, along with any operating rules or guidelines published over the System by COMPANY, constitute the entire agreement between COMPANY and CUSTOMER with respect to the Services. No amendment to this Agreement shall be effective unless accepted in writing by both parties. CUSTOMER agrees to comply with COMPANY's operating rules and guidelines, which may be amended from time to time at COMPANY's sole discretion.
18. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Oregon, exclusive of choice of law rules. The parties each hereby agree that the venue and jurisdiction for any action arising out of or in connection with this Agreement shall be in Washington County, Oregon.
19. Enforceability. If any portion of this Agreement is wholly or partially unenforceable, for any reason, such unenforceability shall not affect the balance hereof.
20. Assignment. CUSTOMER may not assign its rights or obligations under this Agreement without the prior written consent of COMPANY, which consent shall not be unreasonably withheld.
21. No Waiver. Either party's failure to insist upon or enforce any provision of this agreement shall not be construed as a waiver of any provision or right.
22. Force Majeure. Except for obligations to make payment, neither party will be liable to the other for any failure or delay in performing its obligations under this Agreement due to any cause beyond its reasonable control. Each party will give prompt written notice of any condition or event likely to cause any such failure or delay.
23. Written Agreement. This Agreement (and any amendments hereto) represents a binding written contract, whether executed by each party on paper, or accepted by electronic communication or by usage of the System.Effective January 1, 2005
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