Welcome, and thank you for your interest in Swarmsales, Inc. (“Swarmsales,” “we,” or “us”) and our website at www.swarmsales.com, along with our related websites, networks, applications, and other services provided by us (collectively, our “Service”). These Terms of Use are a legally binding contract between you and Swarmsales regarding your use of the Service.

Company Agreement

Last Updated: August 12, 2017
This company agreement (“Company Agreement”) governs your (“You” or “Company”) access to and use of the Swarmsales Service, and specifically the Company-facing portal (“Company Portal”) which: (i) enables you to provide Swarmsales with information (“Company Information”) about sales support needs and proposed engagements; (ii) enables Swarmsales to identify potential Sellers for your engagements; (iii) allows you to confirm an engagement with the selected Sellers (each confirmed engagement, an “Engagement”); and (iv) facilitates coordination, provision of sales and marketing materials, delivery of milestones, and payments between you and the Sellers. Except as otherwise defined in this Company Agreement, all capitalized terms in this Company Agreement are defined in the Terms.

PLEASE READ THE FOLLOWING COMPANY AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE SWARMSALES TERMS OF USE AND SWARMSALES PRIVACY POLICY (TOGETHER, THE “TERMS”).

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Company Eligibility

The Service is not available to minors under the age of 18 old. If you do not qualify, you may not use the Service. Any existing user account may be suspended or terminated for any reason, including a violation of this Company Agreement (including the Terms) and Swarmsales reserves the right to refuse service without prior notice to any user for any or no reason. Selling, trading or transferring your account to another person is prohibited. You represent and warrant you have the authority to enter into this Company Agreement on behalf of the Company.

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Information Provided through the Service

You agree that by providing Company Information through the Company Portal or any other portion of the Service, you are granting to Swarmsales, Inc. a non-exclusive, royalty-free, perpetual, irrevocable license to use, modify, reproduce, display and transmit the Company Information in order to operate and improve the Service. Our use of any personally identifiable information you provide to us under this Agreement will be in accordance with those provisions of the Swarmsales Privacy Policy at Swarmsales Privacy Policy pertaining to the use and disclosure of personally identifiable information by Swarmsales or as otherwise described in the Terms or this Company Agreement.

You agree and understand that:

  • Swarmsales retains the right to reformat, excerpt, or translate any materials submitted by you and all information publicly posted or privately transmitted through the Service is the sole responsibility of the person from which such content originated;
  • Swarmsales will not be liable for any errors, loss, or omissions in any content;
  • Swarmsales may notify you of Sellers that we believe appropriate for your Engagements through the Company Portal and through email;
  • Swarmsales cannot guarantee the authenticity of any Seller displayed through the Service;
  • Swarmsales is a matching service for Sellers and Companies, and does not have any obligation to monitor, evaluate, or guarantee any Seller, or anything else through the Service; and
  • Swarmsales cannot guarantee the performance of any Seller and you hereby agree to defend and hold Swarmsales harmless against any claims from any Seller related to your Engagements.
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Engagements and Terms of Payment

Engagements.Each Engagement will consist of four separate milestones to be achieved by the applicable Seller:

  • Introduction: The Sales Professional must coordinate and complete an introductory meeting between the company and the end customer in order to verify that the sales opportunity is valid. In order for an Introductory meeting to be considered completed without the company representative's presence, this must be approved in writing by the company prior to the meeting happening.
  • Demo: The sales team and Company have completed a demonstration of the product/service to the end customer.
  • Pilot/Proposal: A scenario has been identified by end customer to test Company’s product/service. If a pilot is not required, this milestone can be considered as completed if the Sales Professional delivers a Proposal that was requested by the end customer.
  • Won: Written Purchase order or Commitment has been received from end customer.

Milestone and Platform Fees. Payment for Engagements (for each Engagement, the “Engagement Fee”) is handled through our third-party payment processor. Upon completion of each milestone, Company will pay: (i) to the Seller one quarter of the Engagement Fee (“Engagement Fee Tranche”); and (ii) to Swarmsales the applicable fee on such Engagement Fee amount (the “Engagement Fee Charge”). Company must pay the first Engagement Fee Tranche and Engagement Fee Charge upon the selection of a Seller, to be held in a designated third party payment provider account pending completion of each milestone. Upon completion of each milestone, Company and Seller will both confirm through the Service that the milestone has been completed. Upon the confirmation from both Company and Seller, Swarmsales will release the the Engagement Fee Tranche to the Seller and the Engagement Fee Charge will be released to Swarmsales. Unless the milestone completed is the “Won” milestone, Company will immediately fund the subsequent Engagement Fee Tranche and Engagement Fee Charge following release of funds to the Seller and Swarmsales. Swarmsales reserves the right,at any time, to process milestone payments to Sales Professionals on behalf of a company that have not been released within 3 days of requested by the sales professional, and terminate its contract with the company for its failure to release the funds in the time allotted.

Engagement Commissions. Upon completion of the “Won” milestone and deal completion, Seller will be entitled to the commission on the total contract value of the deal agreed between Swarmsales and Company (the “Engagement Commission”). Seller will enter the amount of the total contract value of the deal into the Service and Company will confirm such value is correct. Company will then pay the Engagement Commission via the Service no later than seven (7) days of collecting payment from the end customer. Subsequently, within seven (7) days of Swarmsales receiving the Engagement Commission, Swarmsales will release payment to the seller, less any fees owed to Swarmsales by the Seller. Swarmsales reserves the right to obtain renewal business or any new business, unrelated to the prior engagement, for two (2) years from any engagement that has been Won on its Service. Swarmsales and it’s Seller will register any renewal or new business via the Swarmsales platform and both the terms of the renewal or new business will be based on the original agreement between the parties, unless otherwise agreed upon in writing.

Engagement Cancellations. To cancel an Engagement, Company must provide Swarmsales with an acceptable reason for cancelling the Engagement. If Swarmsales accepts the reason for cancellation, in its sole discretion, the Engagement will be cancelled as an “Excused Cancellation”. Upon Swarmsales’s acceptance of an Excused Cancellation, the Engagement will terminate, and the Engagement Fee will be refunded to Company, less any Milestone Fees already owed to the Seller for completed milestones. With the exception of an Excused Cancellation, If the Company wants to cancel an Engagement, the Company must notify Swarmsales within two (2) days and must allow the Seller to attempt to complete the Engagement within five (5) days of the cancellation request. Thereafter, the Seller will be refunded the Milestone Fee kept in reserve at the time of the Cancellation held by Swarmsales’ third party payment processor until such time it is refunded to the Company. If, after accepting an Engagement, the Seller cancels its acceptance of the Engagement, or otherwise fails to perform under the Engagement as determined by Swarmsales under the Engagement Dispute provisions in Section 7, below, Swarmsales will refund Company the then-current Engagement Fee and Engagement Fee Charge being held by Swarmsales’ third party payment processor at such time. In the event that the Company has won any deal with the target of the Engagement within 18-months after the cancellation of the Engagement, Seller will be entitled to the Engagement Commission for the deals won and Seller must update his/her details of the engagement in the Swarmsales Platform.

Fees and Taxes. Company is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Engagements, including any third party payment processing fees. Reimbursements. Swarmsales reserves the right to review refunds/reimbursements on a case by case basis and will make best efforts to make a decision that is equitable with both Company and Seller.

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Positioning and Distribution

You agree that the following are all at the sole discretion of Swarmsales: (i) Positioning of Engagements within the site; (ii) whether an Engagement is featured as a "Featured Engagement" through the service; (iii) which Sellers are matched with the Engagement; and (iv) the duration that an Engagement will be listed in the Service. Swarmsales has no control over whether a Seller accepts an Engagement. Access from automated software, or so-called crawlers or spiders, to Swarmsales is strictly prohibited. You must not simulate our website functionalities for other websites.

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No Assignment or Resale of Engagements

Company may not resell, assign, or transfer any of its rights hereunder. Any attempt by Company to resell, assign or transfer such rights shall result in immediate and automatic termination of this Agreement, without payment or liability on the part of Swarmsales. Swarmsales may assign this Company Agreement, including the Terms, at any time.

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Engagement Disputes

In the event that disputes arise between the Company and Seller related to an Engagement, and the Company and Seller are unable to resolve the dispute, the dispute must be submitted to Swarmsales, who may use reasonable efforts to facilitate a resolution to the dispute. If Swarmsales in unable or unwilling to resolve the dispute, Swarmsales may terminate the Engagement (“Dispute Cancellation”). In the event of a Dispute Cancellation, Swarmsales may distribute to Seller a pro-rata portion of the next uncompleted milestone (to be determined in Swarmsales’ sole discretion), and will remit the remainder of the Engagement Fee to Company, less any Platform Fee due to Swarmsales.

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Statistics and Results

Swarmsales makes no guarantee with respect to the quality or number of Sellers, or any other results of, or metrics regarding, any Engagement.

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Audit Rights

Company will keep and maintain complete and accurate records of all Engagements and relationships with Engagement targets, and will allow Company, or its representative, during normal office hours, to inspect and make copies of applicable records for the purpose of reviewing all deals between the Company and Engagement targets, during the term of this Company Agreement, and for 18 months following termination of this Company Agreement. All books of account and records will be kept available for at least 18 months after the end of the term of this Company Agreement.

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Confidentiality

Company will keep confidential all information reasonably identifiable as confidential or proprietary received from Seller or Swarmsales (“Confidential Information”). Company will keep Confidential Information confidential by using at least the same care and discretion as used with Company’s own confidential information, but in no case less than a prudent and reasonable standard of care. Information is not subject to confidentiality obligations if it is: (a) in the public domain through no fault of Company; (b) known by Company prior to the time of disclosure by Seller or Swarmsales, (c) lawfully and rightfully disclosed to Company by a third party on a non-confidential basis, (d) developed Company without reference to Confidential Information or (e) required to be disclosed by law, provided that Company promptly provide notice to the discloser of such request or requirement so the discloser may seek appropriate protective orders. If any party, its employees, or agents breaches or threatens to breach the confidentiality obligations or obligations relating to use of the Confidential Information, the affected party may obtain injunctive relief from a court of competent jurisdiction, in addition to its other remedies, inadequate monetary damages, and irreparable harm being acknowledged.

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Indemnification

Company agrees to indemnify, defend and hold Swarmsales harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to: (i) your use of the Service; (ii) breach of any term of the Terms or this Company Agreement; (iii) any actual or threatened third party claim arising from any Engagement posted to the Service; or (iv) any products, services, employment opportunities, or information made available to Sellers or any other user of the Service.

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Right of Swarmsales to Reject or Cancel Engagements

THE SERVICE IS PROVIDED ON AN "AS IS" BASIS. SWARMSALES RESERVES THE RIGHT WITHOUT PRIOR NOTICE TO DISCONTINUE OR CHANGE THE SPECIFICATIONS OF THE SERVICE. USE OF THE SERVICE IS AT YOUR OWN RISK. SWARMSALES DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SWARMSALES DOES NOT GUARANTEE ANY PRODUCT SALES OR OTHER RESULTS TO ANY USER OF THE SERVICE. SWARMSALES DOES NOT WARRANT THAT THE SERVICE OR SITE WILL BE UNINTERUPTED, ERROR- FREE, OR COMPLETELY SECURE, THAT THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED EVEN IF SWARMSALES IS AWARE OF THEM.

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Limitations of Liability

Swarmsales shall not be liable for any failure to match a Seller to any Engagement, or for any act or omission of a Seller. IN NO EVENT SHALL SWARMSALES OR ITS DISTRIBUTORS OR SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR OTHER DAMAGES, OR LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SWARMSALES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SWARMSALES' AND ITS SUPPLIERS AND DISTRIBUTORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID BY COMPANY TO SWARMSALES IN CONNECTION WITH THE ENGAGEMENT GIVING RISE TO THE CLAIM. COMPANY ACKNOWLEDGES THAT SWARMSALES HAS ENTERED INTO THESE TERMS AND THIS COMPANY AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THE SAME IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

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Company's Representations

Swarmsales shall not be liable for any failure to match a Seller to any Engagement, or for any act or omission of a Seller. IN NO EVENT SHALL SWARMSALES OR ITS DISTRIBUTORS OR SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR OTHER DAMAGES, OR LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SWARMSALES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SWARMSALES' AND ITS SUPPLIERS AND DISTRIBUTORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID BY COMPANY TO SWARMSALES IN CONNECTION WITH THE ENGAGEMENT GIVING RISE TO THE CLAIM. COMPANY ACKNOWLEDGES THAT SWARMSALES HAS ENTERED INTO THESE TERMS AND THIS COMPANY AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THE SAME IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

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Non-Circumvention

To the fullest extent permitted under applicable law, Company will not, directly or indirectly, hire or engage, attempt to hire or engage, or otherwise solicit any Sellers it has been introduced to via the Service with respect to selling opportunities or other sales positions (other than through the Service), without the permission of Swarmsales. Swarmsales may immediately terminate Company’s account at any time if Swarmsales reasonably believes that Company is attempting to hire or approach Sellers it has been introduced to via the Service (other than through the Service). Company must provide accurate information relating to any Engagements, including any deals closed, follow-up or subsequent deal signings, and all other information requested by Swarmsales to confirm the Company’s obligations under this Company Agreement, and Company will keep all such information accurate and updated at all times.

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Termination; Effect of Termination

Swarmsales may terminate at any time your account, these Terms (including this Company Agreement) and any and all Engagements of Company immediately without notice or cure period, without liability to Swarmsales, and without any obligation of Swarmsales to provide any refund of Platform Fees. Company may cancel any Engagement at any time by deleting it in its online account, or by sending an email to support@swarmsales.com, subject to the payment terms described in Section 4, above. If an Engagement is cancelled prior to its scheduled start date, then Swarmsales will refund Company the fees paid by Company for such Engagement. Otherwise, Swarmsales will have no obligation to refund all or any portion of fees paid for any Engagement, other than as provided in Section 3, above. Sections 2-16 of this Agreement will survive any termination or expiration of this Agreement.

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Construction

Your use of the Service is also subject to the Swarmsales Terms of Use at Swarmsales Terms of Use provided, however, that this Company Agreement will govern to the extent of any conflict with such Terms. No other term or condition other than those set forth in this Company Agreement and the Terms shall be binding on Swarmsales unless in writing signed by a duly authorized representative of each party. In the event of any inconsistency between this Company Agreement and any content or information set forth on the Service (including in any online form contained on the Service), this Company Agreement shall control. These Terms and this Company Agreement constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. Swarmsales will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the Terms and this Company Agreement. This Company Agreement may be amended only by a writing executed by a duly authorized representative of each party.

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Updates to these Terms

Swarmsales may periodically make changes to this Company Agreement. By accessing or using the Service, Company accepts this Company Agreement and all modifications; provided, however, that any modification to this Company Agreement will not apply to any Engagement then in effect.

Seller Agreement

Last Updated: August 12, 2017
This seller agreement (“Seller Agreement”) governs your (“You” or “Seller”) access to and use of the Swarmsales Service in connection with engaging Sellers, and specifically the “Seller Portal” which: (i) enables you to provide Swarmsales with information about yourself, your sales background, availability, expertise and other information (“Seller Information”); (ii) enables Swarmsales to identify potential selling opportunities that you may be qualified for based on your Seller Information; (iii) allows you to confirm selling engagements (each confirmed engagement, an “Engagement”) with the company seeking sales agents (“Company”); and (iv) facilitates the coordination, delivery of milestones, and payments between you and the Company. Except as otherwise defined in this Seller Agreement, all capitalized terms in this Seller Agreement are defined in the Terms.
PLEASE READ THE FOLLOWING COMPANY AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE SWARMSALES TERMS OF USE AND SWARMSALES PRIVACY POLICY (TOGETHER, THE “TERMS”).

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Seller Eligibility

The Service is not available to minors under the age of 18 old. If you do not qualify, you may not use the Service. Any existing user account may be suspended or terminated for any reason, including a violation of the Terms or this Seller Agreement and Swarmsales reserves the right to refuse service without prior notice to any user for any or no reason. Selling, trading or transferring your account to another person is prohibited.

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Information Provided through the Service

You agree that by providing Seller Information through the Seller Portal or any other portion of the Service, you are granting to Swarmsales, Inc. a non-exclusive, royalty-free, perpetual, irrevocable license to use, modify, reproduce, display and transmit the Seller Information in order to operate and improve the Service. Our use of any personally identifiable information you provide to us under this Agreement will be in accordance with those provisions of the Swarmsales Privacy Policy a Swarmsales Privacy Policy pertaining to the use and disclosure of personally identifiable information by Swarmsales or as otherwise described in the Terms or this Seller Agreement.

You agree and understand that:

  • Swarmsales retains the right to reformat, excerpt, or translate any materials submitted by you and all information publicly posted or privately transmitted through the Service is the sole responsibility of the person from which such content originated;
  • Swarmsales will not be liable for any errors, loss, or omissions in any content;
  • Swarmsales may send you periodical newsletters of potential Engagements that you may be interested in;
  • Swarmsales cannot guarantee the authenticity of any Engagements displayed through the Service;
  • Swarmsales is a matching service for Sellers and Companies, and does not have any obligation to monitor, evaluate, or guarantee any Engagement, or anything else through the Service;
  • Swarmsales cannot guarantee that you will be paid for any work that you do for Companies and you hereby agree to defend and hold Swarmsales harms against any claims from any Company related to your work for Companies;
  • Your acceptance of any Engagement does not create an employment relationship between you and the Company submitting the Engagement.
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Access to Service; Position and Distribution

Access from automated software, or so-called crawlers or spiders, to Swarmsales is strictly prohibited. You must not simulate our website functionalities for other websites. You agree that: (i) whether a Seller is matched with an Engagement is at the sole discretion of Swarmsales; and (ii) Swarmsales has no control over whether a Company accepts a Seller for an Engagement.

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Engagements and Terms of Payment

Engagements. Each Engagement will consist of four separate milestones to be performed for the Company:

  • Introduction: The Sales Professional must coordinate and complete an introductory meeting between the company and the end customer in order to verify that the sales opportunity is valid. In order for an Introductory meeting to be considered completed without the company representatives presence, this must be approved in writing by the company prior to the meeting happening.
  • Demo: The sales team and Company have completed a demonstration of the product/service to the end customer.
  • Pilot/Proposal: A scenario has been identified by end customer to test Company’s product/service. If a pilot is not required, this milestone can be considered as completed if the Sales Professional delivers a Proposal that was requested by the end customer.
  • Won: Written Purchase order or Commitment has been received from end customer.

Milestone and Platform Fees. Payment for Engagements (for each Engagement, the “Engagement Fee”) is handled through our third-party payment processor. Upon completion of each milestone, Company will pay: (i) to the Seller one quarter of the Engagement Fee (“Engagement Fee Tranche”); and (ii) to Swarmsales the applicable fee on such Engagement Fee amount (the “Engagement Fee Charge”). Company must pay the first Engagement Fee Tranche and Engagement Fee Charge upon the selection of a Seller, to be held in a designated third party payment provider account pending completion of the milestone. Upon completion of the milestone, Company and Seller will both confirm through the Service that the milestone has been completed. Upon the confirmation of both Company and Seller, Swarmsales will accept the confirmation, the Engagement Fee Tranche will be released to the Seller, and the Engagement Fee Charge will be released to Swarmsales.

Engagement Commissions. Upon completion of the fourth “Won” milestone, and deal closure, Seller will be entitled to a percentage commission (negotiated by Swarmsales with the Company) on the total contract revenue of the deal (the “Engagement Commission”). Seller will enter the amount of the total sale revenue of the deal into the Service, and Company will confirm that the sale revenue entered is correct. Upon confirmation, Company will pay the Engagement Commission via the Service, and the Engagement Commission will be released to the Seller, less any fees owed to Swarmsales by the Seller.

Engagement Cancellations. If, after accepting an Engagement, Seller cancels acceptance of an Engagement, or otherwise fails to perform under the Engagement as determined by Swarmsales under the Engagement Dispute provisions in Section 6 below, Seller will not be entitled to any further payments related to that Engagement, including any Engagement Commission. Once accepted, an Engagement can only be canceled by a Company upon Swarmsales’ acceptance of an excusable reason for cancelling the engagement, or otherwise in Swarmsales’ sole discretion.

Fees and Taxes. Seller is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Seller’s performance of Engagements, including any third party payment processing fees. Swarmsales is not responsible for withholding any income tax payments on behalf of Sellers and Sellers must report any income received from Engagements in accordance with applicable law.

Reimbursements. Swarmsales will review refunds/reimbursements on an individual basis in order to be equitable with both Company and Seller.

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No Assignment or Resale of Engagements

Seller may not resell, assign, or transfer any of its rights hereunder or under any Engagement. Any attempt by Seller to resell, assign, or transfer such rights shall result in immediate and automatic termination of the Seller’s account, without payment or liability on the part of Swarmsales. Swarmsales may assign the Terms and this Seller Agreement at any time. Sellers may not sublicense any of their obligations or responsibilities under an Engagement.

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Engagement Disputes

In the event that disputes arise between the Company and Seller related to an Engagement, and the Company and Seller are unable to resolve the dispute, the dispute must be submitted to Swarmsales, who may use reasonable efforts to resolve the dispute. If Swarmsales in unable or unwilling to resolve the dispute, Swarmsales may terminate the Engagement (“Dispute Cancellation”). In the event of a Dispute Cancellation, Swarmsales may distribute to Seller a pro-rata portion of the next uncompleted milestone (to be determined in Swarmsales’ sole discretion), and will remit the remainder of the Platform Fee to Company, less any commissions due to Swarmsales.

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Statistics and Results

Swarmsales makes no guarantee with respect to the quality or number of Engagements, or any other results of, or metrics regarding, any Engagement.

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Confidentiality

Seller will keep confidential all information reasonably identifiable as confidential or proprietary received from Company or Swarmsales (“Confidential Information”). Seller will keep Confidential Information confidential by using at least the same care and discretion as used with Seller’s own confidential information, but in no case less than a prudent and reasonable standard of care. Information is not subject to confidentiality obligations if it is: (a) in the public domain through no fault of Seller; (b) known by Seller prior to the time of disclosure by Company or Swarmsales; (c) lawfully and rightfully disclosed to Seller by a third party on a non-confidential basis; (d) developed by Seller without reference to Confidential Information; or (e) required to be disclosed by law, provided that Seller promptly provide notice to the discloser of such request or requirement so the discloser may seek appropriate protective orders. If any party, its employees, or agents breaches or threatens to breach the confidentiality obligations or obligations relating to use of the Confidential Information, the affected party may obtain injunctive relief from a court of competent jurisdiction, in addition to its other remedies, inadequate monetary damages, and irreparable harm being acknowledged.

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Indemnification

You agree to indemnify and otherwise hold harmless Swarmsales, Inc., its officers, employees, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages resulting from: (i) your use of the Swarmsales Service; (ii) any dispute initiated by a Company or any third party against SwamSales related to your actions or inactions; or (iii) any other matter relating to your performance under an Engagement.

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Disclaimer of Warranties

THE SERVICE IS PROVIDED ON AN "AS IS" BASIS. SWARMSALES RESERVES THE RIGHT WITHOUT PRIOR NOTICE TO DISCONTINUE OR CHANGE THE SPECIFICATIONS OF THE SERVICE. USE OF THE SERVICE IS AT YOUR OWN RISK. SWARMSALES DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SWARMSALES DOES NOT GUARANTEE ANY INCOME OR OTHER RESULTS TO ANY USER OF THE SERVICE. SWARMSALES DOES NOT WARRANT THAT THE SERVICE OR SITE WILL BE UNINTERUPTED, ERROR- FREE, OR COMPLETELY SECURE, THAT THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED EVEN IF SWARMSALES IS AWARE OF THEM.

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Limitation of Liability

Swarmsales shall not be liable for any failure to match a Seller to any Engagement, or for any errors or inaccuracies in any Engagements (regardless of whether introduced by Swarmsales or any other source), or any other act or omission of a Company. IN NO EVENT SHALL SWARMSALES OR ITS DISTRIBUTORS OR SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR OTHER DAMAGES, OR LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SWARMSALES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SWARMSALES' AND ITS SUPPLIERS AND DISTRIBUTORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID TO SELLER BY SWARMSALES IN CONNECTION WITH THE ENGAGEMENT GIVING RISE TO THE CLAIM. SELLER ACKNOWLEDGES THAT SWARMSALES HAS ENTERED INTO THESE TERMS AND THIS SELLER AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THE SAME IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

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Seller’s Representations.

Seller represents and warrants that: (i) Seller will not, directly or indirectly, approach any Company that it has been introduced to via the Service with respect to selling opportunities or other sales relationships (other than through the Service), without the permission of Swarmsales; and (ii) Seller does not have any other agreements, relationships, or commitments to any other person or entity that conflict with performance of any accepted Engagement, or otherwise conflict with this Seller Agreement. Swarmsales may immediately terminate your account at any time if Swarmsales becomes aware that you are attempting to approach any Company for selling opportunities other than through the Service, or your use of the Service conflicts with any other agreement. Upon request from Swarmsales, Seller must provide accurate information relating to any Engagements, including any deals won, follow-up or subsequent deal signings, and all other information requested by Swarmsales to confirm the Seller’s obligations under this Seller Agreement.

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Termination; Effect of Termination

Swarmsales may terminate at any time your account, these Terms (including this Seller Agreement) and any and all Engagements of Seller immediately without notice or cure period, without liability to Swarmsales, and without any obligation of Swarmsales to pay any fees to Seller for any Engagement(s). Seller may cancel its acceptance of an Engagement at any time by deleting it in its online account, or by sending an email to support@swarmsales.com, subject to the payment terms described in Section 4, above. If an Engagement is cancelled prior to its scheduled start date, Seller is not entitled to any payment. Sections 2-13 of this Seller Agreement will survive any termination or expiration of this Seller Agreement.

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14.
Construction

Your use of the Service is also subject to the Swarmsales Terms of Use at Swarmsales Terms of Use provided, however, that this Seller Agreement will govern to the extent of any conflict with such Terms. No other term or condition other than those set forth in this Seller Agreement and the Terms shall be binding on Swarmsales unless in writing signed by a duly authorized representative of each party. In the event of any inconsistency between this Seller Agreement and any content or information set forth on the Service (including in any online form contained on the Service), this Seller Agreement shall control. These Terms and this Seller Agreement constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. Swarmsales will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the Terms and this Seller Agreement. This Seller Agreement may be amended only by a writing executed by a duly authorized representative of each party.

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15.
Updates to this Seller Agreement

Swarmsales may periodically make changes to this Seller Agreement. By accessing or using the Service, Seller accepts this Seller Agreement and all modifications; provided, however, that any modification to this Seller Agreement will not apply to any Engagement then in effect.

Contact Information. The Service is offered by Swarmsales, Inc., located at 156 2nd St., San Francisco, CA 94105. You may contact us by sending correspondence to that address or by emailing us at info@swarmsales.com.