"Nothing like it, Nothing will replace it"
"I have no idea how we got by without this"
"Unfortunately it elimated some jobs, but that's less overhead for me!"
"Worth EVERY single penny paid"
"A worker of mine recommended this from his other job, and I am glad I met him!"
Tessa Office ("the Software Product") and its accompanying documentation are licensed and not sold. The Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Swim Designs or its subsidiaries, affiliates, providers, and suppliers (collectively "SWIMD") own intellectual property rights in the Software Product. The Licensee's ("you" or "your") license to use the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement ("Agreement").
You accept and agree that you, and your users, will be bound by the terms of this agreement by selecting the "Accept" option during registration, and/or by using the Software Product. You must agree to all of the terms of this agreement before you will be allowed to use the Software Product. If you do not agree to all of the terms of this agreement, you must select "Decline" and/or you must not use the Software Product.
This Agreement entitles you to use the Software Product and its features and the software features licensed to you. The Software Product is an Internet Based Service and only accessible through the Internet. This Agreement does not permit the copying, reverse engineering, downloading, or saving of any part of the Software Product or the Software Product in its entirety.
This Agreement shall commence on the date hereof and continue until the Software Product license is deactivated by either SWIMD or you. Should any breaches of this Agreement occur, it may result in deactivation of the Software Product, and the immediate cancellation of the remainder of that Term. Depending on your contract, you may be responsible for payment up until the end of your term.
SWIMD is not obligated under this Agreement to provide end-user support for the Software Product. If support services are provided by SWIMD, or one of our subsidiaries, the services include no guarantee or warranty. If support services are needed they can be provided at block or hourly rates.
Your rights and obligations set forth in this agreement may not be transferred, assigned, redistributed, encumbered, sold, rented, leased, sub-licensed, lendeed, or changed without the express written consent of SWIMD.
In the event your company is sold or transferred, the Software Product can transfer to the new party, however costs may be incurred, and are able to be itemized at the time of the occurrence, as it is impossible to foresee the possible restrictions of transfer for certain server components in the future.
You may not use the Software Product in any capacity without explicit implementation of the desired action. You may not share logins and credentials. Logins and credentials are intended for one user (person or employee). You may not share logins across multiple users.
You may not decompile, reverse-engineer, disassemble, deconstruct, or otherwise attempt to derive or copy the source code or replicate processes of the Software Product.
You may not use the database portion of the Software Product in connection with any software other than the Software Product without prior written authorization and through approved APIs. You may not access the database data in any way that was not provided to you by SWIMD.
You may not attempt to scan, probe, or penetrate the Software Product to test for vulnerabilities or breach the security of the Software Product in any way by any means without SWIMD’s express written consent.
You may not use or copy any ideas, processes, or implementations used in the Software Product outside of the Software Product without direct written permission from SWIMD.
Any use of the Software Product in violation of these restrictions will result in litigation for current, possible, and future damages, even if said damages are indirect of your actions.
The Software Product is not currently HIPPA compliant. As such, no medical data whatsoever should be entered, or stored in this system. You may not store credit card numbers, social security numbers, or any other sensitive information within the Software Product.
You may not modify the Software Product or create any derivative work of the Software Product or its accompanying documentation. Derivative works include but are not limited to translations. You may not alter or attempt to alter any files or libraries in any portion of the Software Product. You may not reproduce the database portion or create any tables or reports relating to the Software Products database.
SWIMD will provide you, with associated costs, access to raw data based on the features included in your license. Access to additional raw data is prohibited, attempts to access restricted raw data violates your restrictions on use and may result in the suspension outlined in this Agreement. Your access to raw data in the Software Product assumes all liability of the deletion or corruption of data resulting from you or your users. Database structure can change at anytime, be-sure to periodically confirm you are using provided data properly.
Database optimization is your responsibility and it is your responsibility to have your database serviced when needed to maximize performance and avoid the corruption of data. SWIMD will advise you if you may need to optimize your database. Depending on the usage and amount of data determines how often this must occur. If we suggest performing the service, it is up to you to approve it.
It is also your responsibility to arrange for a suitable data backup plan for your needs with SWIMD. Your database will be backed-up frequently, however, in the event of corruption, there can still be some data loss. In the event of any type of data loss, we may be able to provide pure text versions of data that was corrupted for you to recover some of your important information (if the data was entered prior to a backup).
SWIMD will create database backups at established backup intervals based on our discretion. These frequencies can change without notice. If further backups are needed, it is your responsibility to communicate, and establish a backup interval that suits your needs. Any changes of your use of the Software Product may require changes to the backup frequency. In the event a database backup is to be utilized, SWIMD is not liable for any data loss or corruption of data occurring after the backup’s date of inception. Please discuss backup frequency with us to determine if you need to upgrade or change the frequency as per your needs.
SWIMD is not obligated to perform database maintenance or optimization for any external database connected to your license of the Software Product. SWIMD is not responsible for any corruption of data, errors in the Software Product, or any other associated loss occurring as a result of the neglect of database maintenance, use of external databases, or API integrations.
If your website uses login credentials, it is your responsibility to keep this secure, as if it were the login to your banking data. If you distribute logins to your users it is your responsibility to educate your users on keeping their accounts secure. SWIMD strictly prohibits the sharing of user accounts. Any users you give access to your system must have their own account and login information; more on this is in Limitations of Remedies and Damages.
Login credentials are able to be IP Restricted. Credentials in the wrong hands can give a hacker access to your code and database structure, giving them the ability to do as they please. Please keep all logins and passwords secure, and change them in the event of a compromise, or suspected compromise. SWIMD is not responsible for data loss, or code corruption due to any reason, so if this occurs, there may be an expense associated with the repair of the damages.
If login credentials are shared between users, any issues related to bug fixes, emergency outages, or features of the Software Product can result in charges to the customer as a result of the added complexity of the repair. It is a policy to NEVER share login information between multiple users, and ALWAYS IP restricts users or components when available. the Software Product interfaces with external services such as Quickbooks, Banking API’s, Stripe and credit card processors, and others not to be limited to this list. Not securing your credentials for the Software Product can have adverse effects on all external platforms, as actions completed by your login ID can cause data to be added, modified or removed from external services.
If you distribute logins to your users it is your responsibility to inform and to hold your users to the same security standards.
SWIMD will not be in violation of this Agreement if a failure to meet obligations is due to any event out of our control, such as, but not limited to a power grid failure, failure of the Internet, epidemic, terrorism, natural disasters, riots, war, labor disturbances, unscheduled server down time, acts of god or any other event of such magnitude that a company would not be generally prepared for.
Unless otherwise agreed upon, SWIMD may increase fees at any time by notifying you of the increase at least Thirty (30) days in advance, except that SWIMD may increase the fees based on a third party supplier or provider increasing fees to SWIMD Ten (10) days in advance.
Fees do not normally increase without notice, and increases only normally occur yearly or longer.
When you agree to purchase a license for the Software Product, whether or not you have identified or submitted all alterations, changes, or custom components, your server will begin to be structured and configured. Based on your estimated complexity, your contract will contain a deposit amount that will be required to reserve your license and begin further work and discovery. In now way is this deposit refundable. If you decide to cancel and forfeit your license, further payments will not be required, and previous payments cannot be refunded. Depending on the term of your agreement, you may be responsible for further monthly server payments beyond your cancellation, up to the end of your agreed term, regardless of use or business operational status.
SWIMD is the only authorized company to view, work within, and install any code, algorithm, or component to the Software Product. Custom Changes are defined as any alterations to the existing, out of the box state of the Software Product, its database, or components.
SWIMD offers full customization to the Software Product, and any Custom Changes can be submitted for pricing. Pricing of changes is never definite, and can change over time. If further unforeseen edits are required, further chargers can incur. After notification, cancellation is allowed with no refunds for work already performed.
Partial payment for Custom Changes may be required, and full payment may be required before live release. After release, Custom Changes are warrantied for 1 month at reduced rates and free or reduced rates for 1 week after release. Any issues with the Custom Changes beyond this time period are billed at full current rates.All Custom Changes are priced based on the time estimated to complete the work. Any increases to the price will be due to work hours completed. If parts of the Custom Changes require additional work for proper operation, this is unforeseen time to complete and repair, which may cause additional billing. Impact Ramifications are billed after all releases at full rates.
The shell of the Software Product, or "operating system" known as "Tessa Office" is exclusively owned, maintained and operated by SWIMD. Customizations for your company are created and added to operate within the Software Product. You are not responsible for maintenance of the core parts of the system, that allow your customizations and features to remain operational. This method allows you, and other companies, to have completely customized management programs without the massive costs associated with, but not limited to, full product maintenance, security, development and design teams, software engineers, support, updates, fixes, modernization, server management, downtime avoidance, emergency repair, and outage abatement.
SWIMD agrees to not sell, distribute or market any custom scripts created specifically for you or under the direction of your company, without written notice of allowance. Custom scripts created by your company are included and installed within the Software Product, and if needed to be provided to your company, will be done in a "removed from operation" format, as the rest of the operational part of the code is proprietary to the Software Product.
You agree that the entirety of the Software Product and the accompanying Documentation will remain the sole property of SWIMD. You agree that you will not attempt to decipher, decompile, disassemble or reverse engineer the Software Product, in the event you choose to leave the Software Product.
All of Your Proprietary Information (as hereafter defined) shall remain your property. You agree to grant SWIMD a royalty-free, non-exclusive right to use, copy, adapt or display your Proprietary Information solely during the term for the purpose of fulfilling SWIMD’s obligations to you under this Agreement. "Proprietary Information" means all of your data and other intellectual property used and entered into the Software Product and includes, without limitation, (i) trade secrets, inventions, ideas, processes, formulas, source and object codes, data, custom algorithms, custom scripts, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (collectively, "Inventions"); (ii) information regarding operational plans, plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; (iii) any Invention, whether or not patentable, and all related know-how, designs, trademarks, formulae, processes, manufacturing techniques, trade secrets, ideas, artwork, custom algorithms, custom scripts, or other copyrightable or patentable works solely or jointly conceived, made, reduced to practice, or learned by SWIMD in the course of providing any services to you hereunder ("Deliverables").
SWIMD hereby assigns to you all rights, titles, and interests worldwide, in and to, the custom scripts and algorithms, made under the direction of, or by, your company, and all applicable intellectual property rights related thereto, excluding copyrights, trademarks, trade secrets, patents, moral rights, scripts and code structure, contract and licensing rights owned or created by SWIMD.
In the event payments in full are not made for completed work, all ownership of any, including claims of proprietary processes or information, and all Deliverables are forfeit to SWIMD, as well as any such scripts or code proprietary to you that have been altered, modified, connected to, related to, supportive of, or changed in any way as a result of the work performed.
Notwithstanding anything to the contrary herein, SWIMD shall be free to use and employ its general skills, know-how, and expertise gained or learned during the course of performing under this Agreement, so long as SWIMD acquires and applies such information without use or disclosure of or reliance on any of your Proprietary Information.
We may suspend your access to the Software Product without liability if:
(i) We reasonably believe that the Software Product is being used in violation of this Agreement.
(ii) We reasonably believe that the Software Product has been accessed or manipulated by a third party without your consent.
(iii) As required by law.
(iv) You do not cooperate with our investigation of any suspected violation of this Agreement.
We will give you reasonable notice of any suspension, unless we determine in our judgment that an immediate suspension is critical to protect yourself, SWIMD, or SWIMD’s other customers from immediate or severe operational or security risk. If the suspension was based on a breach of your obligations under this Agreement, then SWIMD may continue to charge you fees for the Software Product during the suspension period, and may charge you a reinstatement fee upon reinstatement of access to the Software Product.
You will indemnify, defend and hold SWIMD, it’s directors, officers, employees, agents, suppliers, and providers harmless from and against any and all claims (including costs of litigation and reasonable attorney's fees) related to any infringement or claim of infringement by any third party to the extent arising from your Proprietary Information.
SWIMD will send all communications, and notices via the Software Product or via electronic mail. Any such communications sent by electronic mail will be considered acknowledged after a period of five (5) days after it is sent. Any such communications sent via the Software Product will be considered acknowledged after it is viewed in the Software Product. You agree that all communications that we provide to you in the aforementioned methods satisfy any legal requirement that such communication must be in writing. You are responsible for providing, at your expense, any access to the Internet and any required equipment.
Unless otherwise explicitly agreed to in writing by SWIMD, SWIMD makes no other warranties, express or implied, in fact or in law, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose other than as set forth in this agreement or in the limited warranty documents provided with the Software Product.
SWIMD makes no warranty that the Software Product will meet your requirements or operate under your specific conditions of use. SWIMD makes no warranty that operation of the Software Product will be secure, error free, or free from interruption. The Software Product is provided "as is" with no warranty. You must determine whether the Software Product sufficiently meets your requirements for security and uninterruptability. You bear sole responsibility and all liability for any loss incurred due to failure of the Software Product to meet your requirements. SWIMD will not, under any circumstances, be responsible or liable for the loss of data on any computer or information storage device.
Under no circumstances shall SWIMD, its directors, officers, employees or agents be liable to you or any other party for indirect, consequential, special, incidental, punitive, or exemplary damages of any kind (including lost revenues or profits or loss of business) resulting from this agreement use of the Software Product, whether due to a breach of contract, breach of warranty, or the negligence of SWIMD or any other party, even if SWIMD is advised beforehand of the possibility of such damages. To the extent that the applicable jurisdiction limits SWIMD’s ability to disclaim any implied warranties, this disclaimer shall be effective to the maximum extent permitted.
Your remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction of the Software Product. SWIMD reserves the right to substitute a functionally equivalent copy of the Software Product, or custom script as a replacement. Further costs can be associated. If SWIMD is unable to provide a replacement or substitute the Software Product or correction to the Software Product, due to proven fault of SWIMD, or its employees, your sole alternate remedy shall be a partial refund of custom changes to the Software Product made within 1 month of the claim. No further refunds may be provided as older components have already been used, and benefited from. Any claim must be made within the applicable warranty period of 1 month. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by SWIMD to have been caused by you. All limited warranties on the Software Product are granted only to you and are non-transferable. You agree to indemnify and hold SWIMD harmless from all claims, judgments, liabilities, expenses, or costs arising from your breach of this Agreement and/or acts or omissions.
You warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom SWIMD is legally prohibited from providing service to. Using the Software Product, you warrant that you are not located in one of such countries on any of these lists or any such list, including countries the United States currently has embargoed. You also agree that you will not use the Software Product for any purpose prohibited by the United States, or your local and state governments.
This Agreement is governed by the laws of New Jersey, without regard to New Jersey's conflict or choice of law provisions. The exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Ocean County, New Jersey.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
"A worker of mine recommended this from his other job, and I am glad I met him!"
"Worth EVERY single penny paid"
"Unfortunately it eliminated some jobs, but that's less overhead for me!"
"I have no idea how we got by without this"
"Nothing like it, Nothing will replace it"