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Swarm Commercial Agreement – Rev2.11 – Dec 2021 (swarm)

SWARM TECHNOLOGIES, INC.

ONLINE COMMERCIAL AGREEMENT (“AGREEMENT”)

 

Last Revised: April 7, 2022

 

THANKS FOR BECOMING A VALUE-ADDED RESELLER OF SWARM TECHNOLOGIES INC.’S (“SWARM”) HARDWARE AND SERVICES! PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY CLICKING ON A “PLACE ORDER” BUTTON, EXECUTING A SALES ORDER THAT INCORPORATES THIS AGREEMENT BY REFERENCE, OR OTHERWISE ACCESSING USING, OR RESELLING SWARM’S HARDWARE AND SERVICES, YOU, THE COMMERCIAL CUSTOMER, AGREE TO THE TERMS OF THIS AGREEMENT WITH SWARM AND TO THE COLLECTION AND USE OF INFORMATION AS SET FORTH IN THE SWARM PRIVACY AND INFORMATION SECURITY NOTICE, WHICH IS PART OF THIS AGREEMENT. IF YOU’RE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE FULL AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT. IF YOU DON’T AGREE WITH THE TERMS OF THIS AGREEMENT, DON’T CLICK ON AN “PLACE ORDER” BUTTON, EXECUTE A SALES ORDER, OR OTHERWISE ACCESS USE, OR RESELL SWARM’S HARDWARE AND SERVICES.

 

 

 

  • “Activation Date” means the date in which the Unit is first activated on the Swarm Network, which shall be the first of the month following the date when fifty (50) cumulative data messages are sent. The Activation Date is the start of your subscription term.
  • “Product” means the solution developed by Commercial Customer incorporating Swarm Services and Swarm Hardware as well as other hardware, software, and services, that provides a functional solution for a Subscriber or End User.
  • “End User” means the ultimate end user of a Product accessing the Swarm Network, e.g., the customer of a Subscriber reseller. End User does not include Subscribers that have purchased a Product for their own use.
  • “Sales Order” means the vehicle for placing orders for Swarm Hardware and Swarm Services.
  • “Subscriber” means the customer purchasing a Product from Commercial Customer for its own use or for resale.
  • “Subscriber Information” means any information or data regarding a Subscriber (or End User) or Product provided to Swarm by Commercial Customer during the term of this Agreement.
  • “Swarm Hardware” means the transceiver that enables data communications via the Swarm Network.
  • “Swarm Network” means the satellite data communication system operated by Swarm.
  • “Swarm Network Practices Guide” means the document that details Commercial Customer’s access to the data carried by the Swarm Services found at https://swarm.space/customerdocs/.
  • “Swarm Services” means the data communication services provided by Swarm using the Swarm Network.
  • “Territory” means the geographic or other market territory where Commercial Customer is authorized to resell Swarm Services and Products. Commercial Customer can request the then-current list of approved countries by emailing [email protected]
  • “Unit” means the Product activated on the Swarm Network by Commercial Customer (or a Subscriber reseller) to enable the Subscriber or End User to utilize the Swarm Services.

 

  1. COMMERCIAL CUSTOMER PURCHASES, NON-EXCLUSIVE APPOINTMENT, PROHIBITIONS.

 

  • Swarm Hardware and Swarm Services. Commercial Customer will purchase the Swarm Hardware and Swarm Services, as further documented in a Sales Order. Swarm reserves the right to change or modify the Swarm Hardware and Swarm Services, but will not materially diminish functionality of the Swarm Services during a subscription term. Delivery of the Swarm Hardware shall be Delivered at Place (DAP) from Swarm’s facility. Commercial Customer is responsible for all shipping, handling, and customs/duties costs. Title and risk of loss of, or damage to, the Swarm Hardware shall pass to Commercial Customer upon delivery to the Commercial Customer’s delivery address. Unless Commercial Customer notifies Swarm in writing within ten (10) calendar days from the date of receipt of any Swarm Hardware that the Swarm Hardware is rejected, the Swarm Hardware will be deemed accepted. Any notice of rejection must specify the reason(s) why the Swarm Hardware is being rejected.

 

2.2        Appointment. Swarm hereby appoints Commercial Customer as a non-exclusive reseller to market, promote, and resell access to and use of the Swarm Network to Subscribers solely in connection with the Product in the Territory and otherwise in accordance with the terms of this Agreement. Any purported resale by Commercial Customer other than pursuant to the terms and conditions of this Agreement, is strictly prohibited and shall be null and void.

 

2.3        Prohibitions. Commercial Customer is expressly prohibited from reselling any Swarm Hardware or Swarm Services except as components of a Product. All Commercial Customer purchases of Swarm Hardware must be directly from Swarm under the terms of this Agreement. Commercial Customer will not itself, or allow others to (i) replicate, recreate, or reverse engineer the Swarm Hardware, Swarm Services, Swarm Network, or protocol or otherwise interfere or tamper with the Swarm Hardware, Swarm Services, or Swarm Network or the security of any of the foregoing or its or their related systems, or (ii) unless expressly permitted hereunder, alter, merge, modify, translate, or prepare any derivative works based upon the Swarm Hardware or Swarm Services.

  1. PRICING; PAYMENT TERMS.

 

  • Pricing. Pricing for the Swarm Hardware and Swarm Services will be as set forth at swarm.space/product/swarm-m138-modem. Additional terms and conditions related to pricing are described in more detail in Exhibit A.

 

  • Payment for Hardware. Commercial Customer authorizes Swarm (through its third-party payment processor) to charge Commercial Customer’s approved credit card for the one-time immediate purchase price of the Swarm Hardware set forth in the Sales Order, including shipping and handling and applicable taxes. Swarm will notify you by email that we are preparing to ship your Hardware.

 

  • Payment for Services. The annual service fee for Swarm Services will be automatically charged and paid on the Activation Data for each Hardware device and every year thereafter on that same calendar date.. Swarm will notify you by email that we are preparing to ship your Hardware. You authorize Swarm to charge your approved payment method for the annual recurring Service charges, including applicable taxes, for the Swarm Services set forth in the Sales Order.
    • Payment Authorization. Commercial Customer authorizes Swarm (through its third-party payment processor) to charge Commercial Customer’s credit card for all charges made under this Agreement. Use of a credit card is subject to the terms and conditions in Commercial Customer’s card member agreement, including fees that may be charged by the issuer. If there is a change to Commercial Customer’s credit card account information, including expiration date, Commercial Customer must update its payment information by contacting [email protected] to avoid suspension or termination of the Swarm Services. Swarm may also update Commercial Customer’s payment information with information provided by the payment service providers. Commercial Customer authorizes Swarm to continue to charge Commercial Customer’s credit card following any update to Commercial Customer’s information.
    • Non-Refundable. All payments for Swarm Hardwareare non-refundable after the equipment has been shipped and all payments for Swarm Services are non-refundable after the Activation Date.

 

 

  1. OBLIGATIONS OF COMMERCIAL CUSTOMER.

 

  • Legal/Requirements Compliance. Commercial Customer shall obtain and maintain all necessary legal and/or regulatory approvals, licenses, permits, or authorizations required for the sale, import and operation of the Product in the Territory and shall fully comply with any regulatory reporting requirements in the Territory.

 

  • Subscriber Invoicing/Collection. Commercial Customer shall be solely responsible for invoicing and collection for Subscribers.

 

  • Representations and Warranties. Commercial Customer shall not itself, and shall ensure that its Subscribers do not, make any representation, warranty, indemnity or similar claim concerning the operation, performance, reliability, redundancy, fitness for particular purpose, or similar feature of the Swarm Hardware, Swarm Network, or Swarm Services except as specifically set forth herein.

 

  • Subscriber Contracts. Commercial Customer shall enter into a contract with Subscribers in compliance with terms and conditions of this Agreement and shall include provisions addressing intellectual property rights, disclaimer of warranties, limitations of liability, and remedies, applicable to the Product hereunder.

 

  • Use of Swarm Marks. Commercial Customer acknowledges and agrees that the name “Swarm” and all related marks, logos and designs are service marks, trademarks, and trade names of Swarm (“Swarm Marks”). Commercial Customer shall not use the Swarm Marks except as specifically set forth herein and according to the Swarm Joint Marketing & PR Guidelines at https://swarm.space/customerdocs/. Without limiting the generality of the preceding sentence, Commercial Customer shall not use the Swarm Marks in connection with any Products other than the Swarm Services and Product.

 

  • Use of SpaceX or Starlink Marks. In order to avoid any risk of confusion, Commercial Customer acknowledges and agrees that the SpaceX and Starlink name, logo or other trademarks (such as Falcon and Dragon) shall not be used in connection with any product, entity or idea, unless otherwise allowed under current trademark law, (e.g., the fair use doctrine).

 

  1. OBLIGATIONS OF SWARM.

 

  • Access. Subject to the terms of this Agreement, Swarm shall provide access to the Swarm Services and use of the Swarm Network to Commercial Customer via the Swarm Hardware.

 

  • Swarm Maintenance and Repairs. Swarm shall have the right to perform repairs, maintenance, or network upgrades on the Swarm Services from time to time, without prior notice to Commercial Customer, and any resulting outages of or interruptions to the Swarm Services shall not be deemed an outage period. Swarm shall use reasonable endeavors to notify Commercial Customer of any scheduled repairs or maintenance that may potentially impact the performance of the Swarm Services.

 

  • Swarm Support. Commercial Customer can consult [email protected] or the Swarm Network Practices Guide for any questions regarding the Swarm Hardware and Swarm Services.

 

  1. RESTRICTIONS ON ACCESS AND USE.

 

For purposes of this Section 6, Subscribers are deemed to include End Users.

 

  • Abuse and Fraudulent Use. Access to the Swarm Network is furnished subject to the condition that there be no abuse or fraudulent use of the Swarm Network by Commercial Customer or Subscribers. Commercial Customer shall not abuse or fraudulently use the Swarm Network and shall take commercially reasonable steps to control and prevent abuse or fraudulent use of the Swarm Network by Subscribers. Abuse or fraudulent use of the Swarm Network includes, but is not limited to (i) providing or attempting to provide, or assisting, or permitting a third party to (a) access, alter or interfere with the communications and/or information of a Subscriber by rearranging, tampering, or making an unauthorized connection with any Swarm Hardware or network facilities of Swarm, or (b) use of any scheme, false representation, or false credit device, with the intent to avoid payment, in whole or in part, for the Swarm Services, (ii) using the Swarm Network in such a manner so as to interfere unreasonably with the use of the Swarm Network by Subscribers, or (iii) using the Swarm Network to convey information that is deemed, in Swarm’s sole judgment, to be obscene or unlawful. Commercial Customer shall promptly advise Swarm in the event Commercial Customer has knowledge or reason to believe that any Subscriber is abusing or fraudulently using or interfering with the Swarm Network. Swarm shall have the right to immediately suspend or terminate access to the Swarm Network with respect to such Subscriber with no liability for such termination. Swarm shall promptly notify Commercial Customer of any such suspension or termination of the Swarm Services and the basis for such action.

 

  • Unusually High Usage; Abnormal Usage. Each party shall use commercially reasonable efforts to monitor usage of a Product and to identify unusually high or abnormal usage patterns. Should Commercial Customer detect or be advised by Swarm of unusually high or abnormal usage transmissions of a Product, Commercial Customer shall promptly investigate any such instance.

 

  • Regulatory Requirements. Commercial Customer shall be responsible for ensuring that (i) it only sells or otherwise distributes Product under this Agreement, and (ii) all Product used with the Swarm Network meets the regulatory requirements of the applicable governmental authority of where the Swarm Hardware was approved. Commercial Customer shall also use commercially reasonable efforts to ensure that the Subscribers’ use of Product meets the regulatory requirement of the applicable governmental authority.

 

  1. INFORMATION SECURITY.

 

  • Commercial Customer shall provide Subscriber Information to Swarm, or to any authorized governmental authority, to the extent required to comply with laws and regulations applicable to the Swarm Services.

 

  • Commercial Customer agrees that any Subscriber Information such as data and/or records of a Subscriber (or End User), including, but not limited to, personally identifiable information such as name, address, identification number, and transaction information, will be subject to applicable federal, state, or international laws applicable to the collection, use, disclosure, processing, and free movement of such personally identifiable information.

 

  • Notwithstanding Sections 7.1 and 7.2 above, Commercial Customer agrees that Swarm may periodically collect information, including, but not limited to, technical information and data, about Subscriber’s (or End User’s) use of a Product and the Swarm Services to facilitate updates, support, analysis, management, and other services relating to the Swarm Network. Swarm shall use this information for management of Swarm’s products, services, or technologies provided hereunder, which use will be in accordance with applicable laws. For more information, see Privacy and Information Security Notice at https://swarm.space/customerdocs/.

 

  1. TERM; TERMINATION.

 

  • This Agreement commences on the date Commercial Customer first executes a Sales Order and continues unless earlier terminated as set forth herein. The initial subscription term for the Swarm Services starts on your Activation Date and lasts for one (1) year. The subscription term  shall automatically renew for successive one (1) year renewal terms unless either party gives the other party electronic notice of non-renewal at least twenty-eight (28) days prior to the commencement of any renewal term.

 

  • Termination for Cause. Without limiting other rights expressly set forth in this Agreement, either party may terminate this Agreement at any time with immediate effect by giving notice to the other party if the other party (i) breaches an obligation under Section 4.1, Section 4.2, Section 9, Section 10, or Section 14, hereof, (ii) materially breaches this Agreement (excluding the sections referenced in Section 8.2(i)) and fails to cure such breach within ten (10) days for any payment related breach, or within twenty-eight (28) days for any other breach, of the date of receipt of notice of such default from the non-breaching party specifying the grounds for such breach or default, or (iii) is subjected to bankruptcy or insolvency proceedings, whether voluntary or involuntary, including, but not limited to, the execution of an assignment for the benefit of creditors, or in the event either party hereto seeks relief under any bankruptcy or similar debtor relief laws.

 

  • Termination by Swarm. Swarm may terminate this Agreement for its convenience by providing Commercial Customer with ninety (90) days prior written notice. In the event of termination under this Section 8.3, Swarm will provide Commercial Customer with a pro-rated refund of unused, pre-paid fees for the remainder of the term after the effective date of termination.

 

  • Service Discontinuation. In the event Swarm terminates this Agreement for cause, Swarm may terminate or temporarily discontinue furnishing the Swarm Services to Commercial Customer without incurring any liability to Commercial Customer or its Subscribers (or End Users).

 

  • Service Cancellation. Upon the giving or receiving of any notice of termination, Swarm shall be entitled to, without liability, cancel any previous agreement with Commercial Customer to provide Swarm Hardware and/or Swarm Services to new Subscribers that have not yet been activated.

 

  1. CONFIDENTIAL INFORMATION. Each party acknowledges and agrees that it shall treat all information that should reasonably be understood to be confidential given the nature of the information and circumstances of the disclosure, obtained from the other party with the strictest confidence and secrecy and shall not disclose any confidential Information to any third party. The party receiving confidential information shall only use such information in connection with exercising its rights and/or performing its obligations under this Agreement.

 

  1. INTELLECTUAL PROPERTY. Except for rights expressly granted under this Agreement, each party will retain exclusive interest in and ownership of its intellectual property developed before or outside the scope of this Agreement. In addition, any modifications, changes, or customizations made to any intellectual property of Swarm (whether incorporated or embedded in any Swarm Hardware or the Swarm Services), or any derivative thereof, shall at all times remain the sole property of and be exclusively owned by Swarm. For clarity and except as otherwise expressly provided herein, Swarm owns and retains all right, title, and interest in and to the Swarm Hardware, Swarm Network, and the Swarm Services and all intellectual property rights therein.
  2. Commercial Customer agrees to indemnify and hold harmless Swarm for any liability, claims, damages, or proceedings arising out of a Subscriber, End User, or other third party claim (i) relating to or arising from Commercial Customer’s use, sales, or distribution of the Swarm Services or Swarm Hardware, or (ii) of intellectual property infringement with respect to Commercial Customer’s Products, or services used, marketed, or distributed pursuant to this Agreement.

 

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMER. The warranties for the Swarm Hardware are set forth in Exhibit B.

 

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SWARM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE SWARM NETWORK, SWARM HARDWARE, THE SWARM SERVICES (ALL OF WHICH ARE PROVIDED “AS IS”), OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SWARM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, AND ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY, OR CONTENT OF THE SWARM NETWORK OR THE SWARM SERVICES.

 

  1. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S OBLIGATIONS OF CONFIDENTIALITY AND INDEMNIFICATION, A PARTY’S OBLIGATIONS UNDER SECTION 6.1 OF THIS AGREEMENT, OR A PARTY’S LIABILITY ARISING FROM ITS GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR UNLAWFUL ACTS OR OMISSIONS, AND REGARDLESS OF THE NATURE OF THE CLAIM, (I) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, COST OF COVER, LOST PROFITS, LOST GOODWILL, LOST USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, OR LOSS OR IMPAIRMENT OF DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM, CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE FOR THE APPLICABLE SWARM HARDWARE  OR SWARM SERVICES THAT GAVE RISE TO THE CLAIM.

 

Swarm shall not be liable for any act or omission of Commercial Customer or of any other person or entity furnishing equipment, products, or services to Commercial Customer or Subscribers (or End Users), nor shall Swarm be liable for any damages or losses of any kind whatsoever due to any act or omission of Commercial Customer or Subscribers (or End Users) or the failure of such equipment, products, or services.

 

  1. COMPLIANCE WITH LAWS. Each party agrees to comply with all applicable United States or foreign laws, regulations, or statutes governing or relevant to the performance of its obligations under this Agreement. Commercial Customer further warrants and commits that it is aware of the requirements of and will at all times conduct its activities under this Agreement in compliance with applicable U.S. export laws and the provisions of the U.S. Foreign Corrupt Practices Act at 15 U.S.C. §§ 78dd-1, et seq and similar U.S. or applicable foreign anti-corruption laws and it will take no action that might cause Commercial Customer or Swarm to be in violation of such laws.

 

 

  • Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered by electronic communications (with acknowledgment of complete transmission). Notices to Swarm shall be sent to: 435 North Whisman Road, Suite 100, Mountain View, CA 94043, USA, email: [email protected] Swarm will send notices to Commercial Customer to the email address (and/or physical address) Commercial Customer provides to Swarm.

 

  • Assignment. Neither this Agreement, nor any of the rights, interests, or obligations hereunder, shall be assigned or transferred by Commercial Customer hereto (whether by operation of law or otherwise) without the prior written consent of Swarm. Subject to the preceding sentence, this Agreement will be binding upon and inure to the benefit of Commercial Customer’s respective successors and permitted assigns. Swarm can assign this Agreement, in whole or in part, without notice to you and in our sole discretion, to any entity that controls, is controlled by, or is under common control Swarm, or any entity that is a successor in a sale, spinoff, acquisition or merger of Swarm, provided that the assignee can lawfully perform the obligations of the assignor.

 

  • Disputes and Arbitration. The parties shall endeavor to resolve any disputes or differences amicably through dialogue and appropriate executive escalation. Any disputes arising under this Agreement which cannot be amicably resolved, may, by mutual written agreement of the parties, be referred for arbitration in San Jose, California before a single arbitrator under the Rules of Arbitration (“Rules”) of the American Arbitration Association (“AAA”), which arbitration can be conducted remotely if travel is not feasible at the time of any such arbitration. Arbitration is to be held in the English language. Neither party will challenge the jurisdiction or venue provisions as provided in this Section. Each party shall be responsible for its own costs incurred in any arbitration proceeding unless otherwise specifically ordered by the arbitrator.

 

  • Governing Law. This Agreement shall be governed, interpreted, and construed in accordance with the laws of the State of California, United States of America, without regard to conflict of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

 

  • Independent Parties. The parties are independent contractors and nothing in this Agreement creates a partnership, joint venture, or agency relationship. Neither party shall have any authority to bind the other in any manner or hold itself out as having any right, authority, or agency to act on behalf of the other party, except as specifically authorized in this Agreement.

 

  • No Press Release. Neither party has the authority to make any public statements or announcements, including to a governmental authority, without the prior consent of the other party, such consent shall not be unreasonably withheld, except that Swarm may use and disclose Commercial Customer’s name in conjunction with an announcement and/or identification of Commercial Customer as a customer.

 

  • Force Majeure. Except for Commercial Customer’s payment obligations to Swarm, neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, war, strikes, lockouts, fire, flood, storm, or pandemics. Both parties will use commercially reasonable efforts to minimize the effects of such failures or delays.

 

  • Severability. If any part of this Agreement shall be held invalid or unenforceable, such determination shall not affect the validity or enforceability of any remaining portion, which shall remain in force and effect as if this Agreement had been executed without the invalid or unenforceable portion.

 

  • Any terms and conditions of this Agreement that by their nature reasonably should survive termination or other expiry of this Agreement, shall so survive.

 

  • Amendment; Entire Agreement.Swarm may modify or update this Agreement from time to time, so Commercial Customer should consult this page regularly for any changes. Swarm will change the Last Revised date above and post the new Agreement. By continuing to use, access, or resell Swarm Hardware and/or Swarm Services, Commercial Customer agrees to be bound by Swarm’s then-current Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect thereto. ​​Swarm does not accept any additional or different terms or conditions that Commercial Customer presents, including, but not limited to, any terms or conditions contained or referenced in any purchase order or other document.

 

  • Order of Precedence. In the event of a conflict between this Agreement and any Exhibit or a Sales Order, unless expressly provided otherwise therein, the terms of this Agreement shall prevail.

 

 

EXHIBIT A

SWARM PRICING

 

  1. Swarm Hardware. The Swarm Hardware comprises a Swarm satellite data modem that transmits and receives data to and from the Swarm Network and is designed to be embedded into Commercial Customer’s Product.  The Swarm Hardware also includes a 1/4-wave antenna, a GPS antenna, and a U.FL cable.
  2. Data Plan means the subscription to Swarm Services that enables Customer to send and receive data through the Swarm Network.
  3. Pricing. By executing a Sales Order, Customer agrees to the following:

 

  1. Pricing listed at swarm.space/product/swarm-m138-modem at the time that the Sales Order is executed and finalized. Receipt of Sales Order will be confirmed by electronic notice from Swarm.
  2. The Data Plan includes 750 messages per month.
  3. Usage is invoiced based on a billable message size of 192 bytes. g., a ten (10) byte message is billed as a 192 byte message. There are no minimums, connection fees, or implementation costs.
  4. The Data Plan fee is required to be paid annually in advance on the Activation Data for each Hardware device and is non-refundable.
  5. The “Activation Date” shall be the first of the month following the date when fifty (50) cumulative data messages are sent
  6. Thereafter, the Data Plan subscription term will automatically renew for successive one (1) year renewal terms unless either Party gives the other Party electronic notice of non-renewal at least twenty-eight (28) days prior to the commencement of any renewal term. The Data Plan fee will be charged annually upon the subscription renewal term and is payable in accordance with the Agreement.
  7. Customers may choose to sign up for a maximum of four (4) Data Plans (3,000 packets) for each device in advance of starting operations, where each Data Plan is as outlined above. By way of example: four (4) additional Data Plans * $5/month = $20 per device.
  8. Usage is calculated per device, per calendar month, with no pooling or sharing of data between devices, and no rollover of data to future months or pull forward of data from future months.
  9. In the event Commercial Customer’s payment method fails, Swarm will provide notice and Commercial Customer will have 7 days to provide payment. If payment is not received, Swarm shall have the right to immediately suspend or terminate access to the Swarm Network.
  10. In the event Commercial Customer does not pay to renew its Data Plan, the renewal date has passed, and the Swarm Hardware device is deactivated, Commercial Customer can reactivate the Swarm Services and Data Plan for any device at any time. Commercial Customer can reactivate the Swarm Services by contacting Swarm at [email protected] and paying the Data Plan Fee. After payment is received, Swarm will have up to ninety (90) days to reactivate the Swarm Services to that device, and the new Activation Date will be the date the device is activated.  Depending on the version of Swarm Hardware and Swarm firmware, the device may have to be re-programmed using a wired connection to the Swarm Hardware.
  11. Overages are $0.05 per message up to 10,000 messages, and shall be invoiced on a monthly basis.
  12. Once 10,000 messages are reached within a month, Swarm will shut off the Unit, and will not turn the Unit back on.

 

Two-Way Messaging
Allowable Messages Return Messages Per Unit
Swarm Hive (backend) to Unit Up to 60 Return Messages Per Month
Number of Return Messages in 24 Hour Rolling Period Up to 10

 

  1. Each two-way (return) message counts as part of the 750 total messages per month.
  2. Any additional Data Plans purchased beyond the first Data Plan do not have any return messages. By way of example: one (1), two (2), three (3), or four (4) Data Plans will only have 60 return messages per month.
  3. Commercial Customer may purchase one more additional two-way Data Plan for an additional one hundred (100) return messages per month for an additional $10 a month per Unit, which additional plan will be invoiced as part of the annual Data Plan subscription.
  4. The maximum number of return messages that can be purchased is 160/month: 60 from the first Data Plan, and 100 from the additional two-way Data Plan.
  5. If the maximum number of return messages have been sent (60/month or, where an additional one hundred (100) return messages were purchased, 160/month), additional return messages can no longer be sent during that month and will be blocked by the Swarm Network.

 

 

 

 

EXHIBIT B

SWARM HARDWARE WARRANTY

 

SWARM HARDWARE WARRANTY

What Is Covered: Any defects which are traceable to the original material and workmanship of the Swarm Hardware.

 

Swarm Hardware Warranty: The earlier of twelve (12) months from the date of first activation of the Swarm Hardware on the Swarm Network or eighteen (18) months from original ship date of the Swarm Hardware.

 

What We Will Do: As Swarm’s sole obligation, and Commercial Customer’s sole and exclusive remedy, Swarm shall repair or replace defective Swarm Hardware at its sole discretion, in accordance with this warranty. Swarm Hardware that is older than thirty (30) days may be replaced with refurbished Swarm Hardware. Replacement Swarm Hardware will be warranted for the longer of the balance of the original warranty period or ninety (90) calendar days from the date of shipment of the repaired or replaced Swarm Hardware.

 

What Commercial Customer Must Do:  For replacement or repair of defective Swarm Hardware during the warranty period, Commercial Customer is required to obtain a Return Material Authorization (“RMA”) number by sending an email to [email protected], as further described in the RMA process at https://swarm.space/customerdocs/.

Warranty Exclusions: The Swarm Hardware warranty does not cover defects or nonconformities in the Swarm Hardware caused by misuse, neglect, abuse, accident, alteration, improper storage (i.e., the Swarm Hardware must be stored in a sealed and non-condensing environment free from salt-water or salt-air), improper maintenance, or modification by any third party.  Swarm Hardware packaged incorrectly for return may be damaged in shipping, which will invalidate this warranty with respect to such Swarm Hardware, and may cause Commercial Customer to incur a corresponding repair or replacement charge.