This Swiftly Bridge Hardware Addendum (this “Hardware Addendum”) is incorporated into and forms a part of the Agreement between Swiftly, Inc. (“Swiftly”) and Customer. Capitalized terms not defined in this Hardware Addendum have the meanings given to them in the Agreement.
1. Applicability
1.1 Swiftly Bridge
This Hardware Addendum applies to any Swiftly Bridge device and related hardware, accessories, firmware, components, or equipment provided by Swiftly to Customer under an Order Form (collectively, “Bridge Hardware”). Bridge Hardware may be provided as purchased hardware or as a subsidized or no-fee lease in connection with a qualifying subscription commitment, as specified in the applicable Order Form.
1.2 Services
If Customer purchases Swiftly software Services that require Bridge Hardware, Customer acknowledges that Bridge Hardware is necessary for Customer’s receipt and use of such Services. Unless otherwise stated in the applicable Order Form, Customer may not use customer-provided or third-party hardware in place of the Swiftly Bridge.
1.3 Other Hardware
Bridge Hardware is not the only hardware that may be used with the Services. Unless otherwise stated in the applicable Order Form, all hardware other than leased Bridge Hardware will be purchased by Customer and will be subject to Section 11 of the Agreement and any applicable vendor or manufacturer terms.
2. Ownership; Use
2.1 Purchased Bridge Hardware
If Customer purchases Bridge Hardware, title to such purchased Bridge Hardware will pass to Customer in accordance with the applicable Order Form, subject to Swiftly’s and its licensors’ ownership of all software, firmware, intellectual property, and other proprietary rights in and to the Services and Bridge Hardware.
2.2 Leased Bridge Hardware
If Bridge Hardware is provided on a subsidized, or no-fee leased basis, Swiftly retains all right, title, and interest in and to such Bridge Hardware. Customer will not sell, assign, transfer, pledge, encumber, lease, sublicense, or otherwise dispose of leased Bridge Hardware, and will not permit any third party to use leased Bridge Hardware except in connection with Customer’s authorized use of the Services.
2.3 Use Restrictions
Customer will use Bridge Hardware only in accordance with the Agreement, the applicable Order Form, the Documentation, and Swiftly’s reasonable written instructions. Customer will not modify, alter, reverse engineer, tamper with, remove identifying labels from, or attempt to access the software, firmware, or source code of any Bridge Hardware. Customer will not permit any third party to use the leased Bridge Hardware without Swiftly’s express permission.
3. Qualifying subscription commitment; Early termination charge
3.1 Subsidized Bridge Hardware
If an Order Form states that Bridge Hardware is provided at no charge, at a reduced charge, or as a subsidized lease in connection with a minimum subscription commitment, Customer acknowledges that Swiftly is providing the Bridge Hardware in reliance on Customer’s commitment to purchase and maintain the applicable Services for the subscription term stated in the Order Form.
3.2 Early Termination Charge
If Customer terminates the applicable Services before the end of the required subscription commitment for any reason other than Swiftly’s uncured material breach, or if Swiftly terminates the applicable Services due to Customer’s uncured material breach, Customer will pay Swiftly an early termination charge equal to the unamortized portion of the waived or subsidized Bridge Hardware value of (a) $5,000 per device, or (b) the amount specified in the applicable Order Form. If an amount is stated in the Order Form, it shall take precedence. Unless otherwise stated in the applicable Order Form, the Bridge Hardware value will be amortized on a straight-line monthly basis over the applicable subscription commitment. The parties agree that the early termination charge is intended to recover the unamortized portion of the hardware subsidy provided by Swiftly in reliance on Customer’s subscription commitment and is not intended as a penalty.
4. Return of leased Bridge Hardware
4.1 Return Obligation
Upon expiration or termination of the applicable subscription or lease term, Customer will promptly return all leased Bridge Hardware to Swiftly in accordance with Swiftly’s reasonable return instructions. Customer will return leased Bridge Hardware in good working order, ordinary wear and tear excepted.
4.2 Failure to Return; Damage
If Customer does not return leased Bridge Hardware when required, or returns leased Bridge Hardware that is lost, stolen, damaged beyond ordinary wear and tear, or not in good working order, Customer will pay Swiftly the replacement value specified in the applicable Order Form or, if no replacement value is stated, Swiftly’s then-current replacement charge for the applicable Bridge Hardware.
5. Warranty; Repair and replacement
5.1 Bridge Warranty
During each five (5) year period in which Customer maintains an active subscription for the applicable Services, Swiftly will warrant leased Bridge Hardware against physical defects in materials and workmanship. If a defect arises during the applicable warranty period and Customer submits a valid warranty claim, Swiftly will, as Customer’s sole remedy and Swiftly’s sole liability, repair or replace the affected Bridge Hardware with a new or refurbished device that is functionally equivalent to the original device.
5.2 Spares and Replacements
Swiftly may maintain spare Bridge Hardware for replacement purposes. If Customer remains subscribed to the applicable Services beyond the useful life of the applicable Bridge Hardware, Swiftly may replace such Bridge Hardware in accordance with its then-current replacement practices.
5.3 Exclusions
The warranty does not apply to defects, failures, or damage caused by: (a) accident, abuse, misuse, neglect, theft, vandalism, liquid contact, fire, power surge, or other external causes; (b) installation, maintenance, repair, modification, alteration, or tampering by anyone other than Swiftly or its authorized representative; (c) use, operation, handling, storage, or testing not in accordance with the Agreement, Documentation, or Swiftly’s written instructions; (d) use with products, services, equipment, software, or systems not provided or authorized by Swiftly; or (e) any Force Majeure Event.
6. Shipping; Installation; Taxes
6.1 Shipping and Installation
Unless otherwise stated in the applicable Order Form, Customer is responsible for shipping, installation, removal, return shipping, taxes, and similar charges associated with Bridge Hardware. Customer will provide reasonable access, cooperation, and information necessary for Swiftly to provide, support, repair, replace, or recover Bridge Hardware.
7. Disclaimers
7.1 Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS HARDWARE ADDENDUM OR THE APPLICABLE ORDER FORM, AND TO THE FULLEST EXTENT PERMITTED BY LAW, SWIFTLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO BRIDGE HARDWARE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, RELIABILITY, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
8. Conflicts
8.1 Conflicts
In the event of conflict between this Hardware Addendum and the Agreement, this Hardware Addendum will control with respect to Bridge Hardware ownership, use, return, repair, replacement, warranty, and related hardware terms. The applicable Order Form will control with respect to pricing, quantity, subscription term, and customer-specific commercial terms.
