Terms and Conditions
Terms and Conditions for Use of Service
1.1. General Introduction: SWK has published these Terms and Conditions for Use of Service, “TCUS”) in order to document the responsible use of SWK’s networks, systems, services, Website(s) and products (collectively, “SWK Cloud Services”) by our customers, our customers’ employees and other users of SWK Cloud Services (collectively, “Users”).
PLEASE READ THIS TCUS CAREFULLY BEFORE USING ANY SWK CLOUD SERVICES. BY USING ANY PART OF SWK CLOUD SERVICES, YOU AGREE TO BE BOUND BY THIS TCUS AS SPECIFIC BELOW. IF YOU DO NOT AGREE TO ANY PART OF THIS TCUS, DO NOT USE ANY OF SWK CLOUD SERVICES.
1.1.1. You represent that you have read and agree to be bound by this TCUS, and that you are at least eighteen (18) years of age. SWK may revise this TCUS at any time by posting such revised TCUS to the SWK Web site(s). Your continued use of SWK Cloud Services means that you accept and agree to such revised TCUS. If you disagree with this TCUS (as revised from time to time), your sole remedy is to discontinue using SWK Cloud Services. You should visit our website at swktech.com to review this TCUS often to be aware of any revisions.
1.2. Lawful Use: SWK Cloud Services may only be used for lawful purposes and consistent with all rights of other parties. Without limiting the foregoing, SWK Cloud Services shall not be used in a manner which would violate any law or infringe any copyright, trademark, trade secret, right of publicity, privacy right or any other right of any person or entity or for the purpose of transmitting or storing of material which is obscene, libelous or defamatory. Use and access to other networks through SWK must comply with the rules, regulations, terms, policies and/or conditions for such other networks. For purposes of tracking security breaches as well as general system administration, Users agree to be subject to random monitoring of activity while logged on to any SWK Cloud Services.
1.2.1. No current or former User may use programs or methods intended to, or as a possible side-effect of their use, compromise the security of any system or device on our network or any external network, or attempt to bring about a denial of any form of service on our network or any external network.
1.3. Web Commerce:
1.3.1. User acknowledges that User’s use of SWK Cloud Services, and all associated communications and transactions conducted on-line, may not be absolutely secure, and SWK Cloud Services are not guaranteed to be error-free. By engaging in on-line activity, User accepts the responsibilities and risks associated with the use of the Internet generally. User understands that information available to User through the Internet may include materials that are unedited, explicit or offensive to User, and User’s access to such materials is at User’s own discretion and risk.
1.3.2. User further acknowledges that all transactions relating to merchandise or services offered by User through SWK Cloud Services including, but not limited to, the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms for such transactions are agreed to solely between User and third-party purchasers. SWK makes no warranties or representations whatsoever with respect to User’s goods and services, or with respect to the qualifications of any third-party purchaser and shall not be liable in any way to any such third-party purchaser.
1.4. Content Policies –
1.4.1. Harmful Content: User shall not use SWK Cloud Services to transmit, distribute or store material that contains a virus, worm, Trojan horse, or other component harmful to SWK Cloud Services, any other network or equipment, or other Users.
1.4.2. Fraudulent Content: User shall not use SWK Cloud Services to transmit or distribute material containing fraudulent offers for goods or services, or any advertising or promotional materials that contain false, deceptive, or misleading statements, claims, or representations. In addition, User is prohibited from submitting any false or inaccurate data on any order form, contract or online application, including the fraudulent use of credit cards.
1.4.3. Mail & News Program Content: In order to maintain an efficient environment for the exchange of information and opinions, SWK will not facilitate the transmission of harassing or mass unsolicited email in any form, and therefore such activity is strictly prohibited. Using or storing programs or methods designed to conceal the author’s identity by forging header information is also prohibited. User may use anonymous re-mailers so long as they are used legally and in accordance with the policies and procedures of SWK set forth from time to time in SWK’s sole discretion.
1.4.3.1. Using programs to collect email addresses from mailing lists, newsgroups or Web sites (“address harvesters” or “extractors”) is strictly prohibited. Additionally, the use of any form of bulk e-mailer system to deliver unsolicited mail in any amount is strictly prohibited. The use of “opt-out” mail distribution techniques is strictly prohibited. “Opt-out” techniques require User to do something not to receive future emails from a party it never originally requested to receive email from. This includes requiring User to send email to “remove” addresses in such cases. “Opt-in” lists, where User specifically elects to receive a party’s mailings, are permitted, provided ample proof exists that User actually elected to receive mail from such party.
1.4.3.2. SWK does not restrict news postings on the basis of content with the exceptions that postings do not contain illegal information or otherwise violate this TCUS. Posting ten (10) or more separate copies of the same message (“spamming” or “excessive multi-posting”) or cross-posting a message to ten (10) or more newsgroups (“excessive cross-posting”) may also be prohibited. Should User violate these rules, User may be subject to additional charges for resources spent responding to complaints, deleting unsolicited correspondence and account cancellation.
1.4.3.3. SWK may, but is not obligated to, block any incoming or outgoing email message that SWK determines, in its sole discretion, is unsolicited or otherwise violates these terms. SWK shall not be responsible for lost, misdirected, undeliverable or blocked email, whether in transmission or receipt.
1.4.3.4. Evidence that User is participating in any referenced prohibited activities may result in the immediate cancellation or suspension of User’s account in SWK’s sole discretion. Furthermore, SWK reserves the right to communicate information to User that it believes will enhance the benefits of the SWK Cloud Services.
1.5. Bandwidth Bursting – Bandwidth usage levels are determined by traffic samples taken every five minutes. The five-minute samples are collected for the month and then the top 5% are eliminated. The bandwidth charge is based on the next highest remaining sample. SWK’s flexible pricing allows virtually unlimited “bursting” for up to 36 hours per month (based on 8640 samples in a typical month) without additional fees. Incremental charges for usage above Customer’s base bandwidth commitment will only apply if Customer’s usage, as defined above, exceeds Customer’s contracted bandwidth in more than 5% of the monthly samples. Unless stated otherwise in this Agreement, additional fees will be assessed for excess incremental bandwidth consumption in an amount equal to Customer’s monthly per megabit rate for the service multiplied by the overage (in increments of one megabit).
1.5.1. Power Service Consumption and Fee Changes
1.5.1.1. Increased Power Cost Pass-Through. In the event that SWK incurs an increase in power costs from its energy generation and/or energy transport provider(s) of greater than three percent (3%), SWK reserves the right to pass through the impact of such power cost increase to Customer, on a pro rata or proportionate basis. To eliminate any confusion, by way of example: (i) in cases where Customer subscribes to a specific, itemized power service, the rate will be changed by an equal percentage to that of the actual percentage rate change incurred by SWK; or (ii) In instances where Customer is subscribing to a “bundled” per rack service or per square foot service in which, power is included (bundled service), that rate will be changed by an amount equal to the actual percentage rate change incurred by SWK times thirty percent (30%) of the fees for the bundled service.
1.5.1.2. A-B Feed Restrictions Unless otherwise specified and/or defined in Power Service descriptions listed elsewhere in this Agreement and/or in any Work Order or Project Change Request, SWK will provide, as part of its Standard Power
1.5.2. IP ADDRESSES: IP addresses are not portable and are not assigned for independent administration or distribution. User understands that IP assignments are not guaranteed and may be modified as required by SWK and/or the American Registry for Internet Numbers (ARIN).
1.5.3. NON-SOLICITATION: User agrees that it will not directly or indirectly solicit the trade of, or trade with, any other User for a business purpose that would compete with any of the SWK Cloud Services where such solicitation is made possible only through the use of information gained by virtue of being an SWK customer.
1.5.4. SYSTEM SECURITY: Users are prohibited from violating or attempting to violate the security of SWK Cloud Services, including, without limitation, (a) accessing data not intended for such User or logging into a server or account which such User is not authorized to access, (b) impersonating SWK personnel, (c) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (d) attempting to interfere with, disrupt or disable service to any User, host or network, including, without limitation, via means of overloading, “flooding”, “mailbombing”, “denial of service” attacks or “crashing”, (e) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, (f) taking any action in order to obtain services to which such User is not entitled, or (g) attempting to utilize another User’s account name or persona without authorization from that User. Users are also prohibited from attempting any action designed to circumvent or alter any method of measuring or billing for SWK Cloud Services. Violations of system or network security may result in civil or criminal liability. SWK will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
1.5.5. VIOLATIONS: User understands that SWK employs an abuse interface to monitor and manage reported violations of this TCUS, system or network security, any law or regulation, or other network abuses and that SWK may notify User of any reported violations by User. Use of SWK Cloud Services constitutes consent to monitoring. If User is suspected of hacking or violating network security, User may be subject to criminal and civil liability. SWK will investigate incidents involving such violations and may involve and cooperate with law enforcement authorities if a criminal violation is suspected.
1.5.6. SUSPENSION; TERMINATION; ACCESS RESTRICTION: User agrees that any violation of this TCUS may result in suspension or termination of SWK Cloud Services, without notice, at SWK’s sole option. User agrees that SWK shall not be liable for any damages of any nature suffered by User or any third party resulting in whole or in part from SWK’s exercise of its rights under this TCUS. User further agrees that SWK may terminate User’s service if any law enforcement agency, acting within its jurisdiction, advises that SWK Cloud Services are being used in violation of the law.
1.5.6.1.1. SWK reserves the right, in its sole discretion, to terminate User’s access to any or all SWK Web site(s) and the related services or any portion thereof at any time, without notice.
1.5.6.1.2. Violations of this TCUS may be reported at the following email address: O2@swktech.com
1.5.7. RESELLING: User may not resell SWK Cloud Services, or any portion thereof, or otherwise charge others to use SWK, or any portion thereof. Further, User will not redistribute SWK Cloud Services, or any portion thereof, whether or not User receives compensation for such redistribution.
1.5.8. STORAGE CAPACITY; TRAFFIC AND HITS: User’s storage space and bandwidth utilization of SWK Cloud Services must remain within the storage space and bandwidth allocations associated with the access plan User has selected. User is responsible for ensuring that stored electronic mail will not exceed the allocated amount of mail storage. For Web Image and similar accounts, these allocations are set forth in the account plan selected during registration. Should User publish any Web page or site using SWK Cloud Services, the usage of such Web page or site must be consistent with User’s access plan. Additional storage and bandwidth may be available at an additional charge. Please contact your account representative or SWK Customer Care at 856.956.5800 for further details.
1.5.9. ACCOUNTS AND PASSWORDS: User is responsible for the security of all User ID and password information. This TCUS applies to all accounts, sub-accounts, alternative names and passwords associated with User’s principal account. By enrolling for and using SWK Cloud Services, User accepts sole responsibility for the security and confidentiality of all User ID’s and passwords. Accidental or unauthorized disclosure or use may have serious consequences, and SWK shall have no liability for User’s failure to maintain this information securely. Additionally, User is responsible for the use of User’s account(s), whether used under any name or by any person, and for ensuring full compliance with this TCUS by all users of such account(s). In the event of a breach of security through your account(s), User should immediately contact SWK Customer Care at 856.956.5800.
1.6. Liability Disclaimer – USER ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF SWK CLOUD SERVICES AND THE INTERNET GENERALLY. THE MATERIALS ON SWK’S WEB SITE(S) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, AND SWK DISCLAIMS ALL WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION AND MATERIALS CONTAINED IN, ACCESSED FROM, OR VIA, THE SWK WEB SITE(S), SERVER OR THE INTERNET, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
1.6.1. MATERIAL ON SWK’S WEB SITE(S) OR AVAILABLE THROUGH SWK CLOUD SERVICES MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. SWK DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR PROCESS DISCLOSED ON THE SWK WEB SITE(S), SWK CLOUD SERVICES SERVER OR OTHER MATERIAL ACCESSIBLE FROM THE SWK WEB SITE(S), OR THROUGH SWK CLOUD SERVICES.
1.7. Complaint Resolution – In order to resolve a complaint regarding the SWK Cloud Services or to receive further information regarding the use of SWK Cloud Services, User should contact SWK Technologies, Inc.; Attn: Managed Cloud Services, 120 Eagle Rock Avenue, Suite 330, East Hanover, NJ 07936 or via phone at 856.956.5800.
1.8. Use of Third Party Suppliers and Hosting Services – Customer acknowledges that SWK may obtain products and services used in providing the Services from, and otherwise delegate obligations hereunder to, its affiliates or other third-party suppliers. Such third-party services, including third-party hosting services, are provided without any sort of warranties, and SWK cannot ensure that these third-party services are provided free of defect or without interruption. Such third-party services are governed by their respective terms and conditions and SWK shall have no liability with respect to the performance of such services, notwithstanding any recommendations or guidance from SWK in connection with the selection of such service(s).