Master Service Agreement

SUBSCRIBER AND SERVICES AGREEMENT
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ONLINE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF SWAY'S SHOUTLET SERVICE. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
THIS SUBSCRIBER AND SERVICES AGREEMENT ("Agreement") is entered into this 	 day of 			, 	, by and between Sway, Inc., a Delaware corporation with its principal address at 8313 Greenway Boulevard, Suite 100, Middleton, Wisconsin (hereinafter, "Sway") and 					, a ___________________ corporation with offices located at 					 (hereinafter "Subscriber").  Sway and Subscriber may each be individually referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Sway has developed Shoutlet, as defined below, the purpose of which is to assist Sway's clients in publicizing their products, services and news to target audiences; and
WHEREAS, Subscriber desires to obtain rights to use Shoutlet in connection with its efforts to publicize its products, services and/or news to its target audiences; and
WHEREAS, Sway is willing to grant Subscriber the right to use Shoutlet in connection with its efforts to publicize its products, services and/or news to its target audiences;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:
Article 1: Definitions
1.01: "Confidential Information" means any material, data, or information in whatever form or media of a Party that is provided or disclosed to the other Party, except for any information that is:  (i) publicly available or later becomes available other than through a breach of this Agreement; (ii) known to the receiving Party or its employees, agents, or representatives prior to such disclosure or is independently developed by the receiving Party or its employees, agents or representatives subsequent to such disclosure; or (iii) subsequently lawfully obtained by the receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality.  Confidential Information shall include without limitation the following categories of information whether or not disclosed orally or marked as confidential: source code, object code, network configurations, network and application architecture, Services rendered by Sway to Subscriber, financial and operational information, and other matters relating to the operation of the Parties' businesses, including information relating to actual or potential customers and customer lists, customer usage or requirements, business and customer usage forecasts and projections, accounting, finance or tax information, pricing information, and any information relating to the corporate and/or operational structure of Subscriber and its affiliates, software, all information and materials relating to third party vendors, systems integrators, or consultants of Subscriber that have provided or that may provide in the future any part of Subscriber's information or communications infrastructure to Subscriber.
1.02: "Content" means information provided by Subscriber for use via Shoutlet. 
1.03: "Contract Documents" means this Agreement, the Terms of Service, terms of the Service Plan, the Acceptable Use Policy (incorporated herein and attached hereto as Schedule 1.03), Sway's invoices, and any other document(s) intended to govern Subscriber's use of Shoutlet.
1.04: "Customer Data" means personal, demographic, and/or contact information pertaining to Subscriber's customers or potential customers, including without limitation email addresses, provided to Sway by Subscriber in connection with Subscriber's use of Shoutlet.
1.05: "Designated Personnel" means Subscriber's employee(s) who may access Shoutlet and initiate Services in accordance with the terms of the Service Plan selected by the Subscriber hereunder.  Subscriber may revise the list from time to time; provided, however, that Subscriber shall notify Sway promptly in writing of any such revisions. 
1.06: "Intellectual Property" means a party's intangible property that is protectible by means of patent, trademark, copyright, trade secret or other comparable laws.
1.07: "Service Plan" means the Shoutlet service plan option selected by the Subscriber in connection with the execution of this Agreement. 
1.08: "Services" means any actions by Sway that are necessary or desirable to facilitate Subscriber's use of Shoutlet.  "Services" expressly excludes the provision of Internet access.
1.09: "Shoutlet" means the Shoutlet(tm) system created and maintained by Sway, as more particularly described in the Contract Documents.
Article 2: Grant of Rights
2.01: License Grant.  Sway hereby grants, and Subscriber accepts, a limited, personal, nonexclusive, non-transferable, worldwide license to use Shoutlet according to the terms and conditions of the Contract Documents.
2.02: Right to Use Content and Customer Data.  In exchange for the license granted above in Section 2.01, Subscriber hereby grants Sway the nonexclusive right to distribute the Content and to use the Customer Data, to further the intent and purposes of this Agreement.
2.03: Limitations on License.  
(a) All systems and services furnished to Subscriber are furnished only under the above license, solely for Subscriber's use.  All of the services and systems used by Subscriber hereunder, excluding only Content and Customer Data provided by Subscriber, are and shall remain the sole, exclusive and confidential property of Sway or of third parties from whom Sway has secured the right to use the same.
(b) Except as provided in the Contract Documents, no license under any patents, copyrights, trademarks, trade secrets or any other intellectual property rights, express or implied, is granted to Subscriber under this Agreement.
Article 3: Term 
3.01: Term.  This Agreement is effective as of the date first written above and shall remain in effect for the term specified in the Service Plan option.  Upon expiration of such initial term (and any subsequent term), and provided that Subscriber is not then in default under the terms of this Agreement, the Agreement shall automatically renew for a subsequent term of equal duration to the term immediately preceding it.  Each Party shall have the right not to renew the Agreement by notifying the other Party of its intent not to renew no later than ninety (90) days prior to such expiration.  Non-renewal shall not relieve Subscriber of its obligation to pay for all Services performed by Sway and all of Subscriber's use of Shoutlet prior to any such non-renewal according to the terms of payment herein and in the Contract Documents. 
Article 4: Events of Default; Remedies; Termination and Surviving Obligations
4.01:  Termination.
(a) Sway shall have the right to terminate this Agreement and to terminate Subscriber's access to Shoutlet, if: (i) Subscriber makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or any part of Subscriber's property or business; (ii) Subscriber is adjudicated bankrupt; or (iii) Subscriber fails to perform or observe any of its obligations hereunder and such condition is not remedied within thirty (30) calendar days after written notice to Subscriber.  In the event that Sway elects to terminate the Agreement hereunder, Sway shall promptly notify Subscriber of such decision in accordance with the procedure set forth in this Agreement.
(b) Subscriber shall have the right to terminate this Agreement if: (i) Sway makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or any part of Sway's property or business; (ii) Sway is adjudicated bankrupt; (iii) Sway fails to perform or observe any of its obligations hereunder and such condition is not remedied within thirty (30) calendar days, except as otherwise provided herein, after written notice is received by Sway; or (iv) Sway shall cease to conduct business as a going concern.  In the event that Subscriber elects to terminate the Agreement hereunder, Subscriber shall promptly notify Sway of such decision in accordance with the procedure set forth in this Agreement.
(c) In the event that either Party is in breach or default of any of the terms, conditions, or covenants of this Agreement, and such breach or default continues for a period of thirty (30) calendar days after the defaulting Party receives written notice of such default from the non-defaulting Party, then in addition to all other rights and remedies of law or equity or otherwise, the non-breaching Party shall have the right to cancel this Agreement without any charge, obligation, or liability whatsoever, except as to the payment by Subscriber for services already received and accepted by Subscriber. NEITHER SUBSCRIBER NOR SWAY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING FROM A BREACH OF THIS AGREEMENT OR THE CONTRACT DOCUMENTS.
4.02: Return of Information.  Upon the effective date of termination, cancellation or expiration of this Agreement, each Party shall, without request by the other Party, immediately return all papers, materials, and property of the other Party, without regard for whether or not such property is "Confidential Information" as defined herein. In lieu of the returning Party physically returning the property to the receiving Party and at the receiving Party's option, the receiving Party may instruct that any of its property that is "Confidential Information" be immediately destroyed by the returning Party. In addition, each Party will assist the other in the orderly termination of this Agreement and in the transfer or destruction of all property, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party.
4.03: Balance Due and Liquidated Damages.  In the event that Sway elects to terminate this Agreement as a result of a default by Subscriber, Sway shall be entitled to recover immediately from Subscriber all sums due for services provided prior to such termination, together with liquidated damages in a sum equal to the product of the average monthly charges to Subscriber for all services performed under this Agreement, including all of the Contract Documents, times the number of months remaining in the initial or any renewal term of this Agreement. If Sway elects not to terminate the Agreement after a default by Subscriber, it may by written notice to Subscriber thereafter require that Subscriber pay cash, cashier's check or certified funds for the performance of services by Sway.
Article 5: Price and Payments
5.01: Price.  The price for the Services shall be according to the authorized price schedule in effect from time to time, as documented in the Service Plan.
5.02: Invoices.  Sway shall invoice Subscriber periodically for Services rendered since its last invoice.
5.03: Payments.  Upon receipt of an invoice from Sway, Subscriber shall promptly remit payment in accordance with the terms, conditions and payment instructions on such invoice.  Such payments shall be payable to Sway in immediately available U.S. funds.
Article 6: Training Services and Technical Support
6.01: Training Services.  The Shoutlet tool is web based and has been designed for ease of use with intuitive features. Incorporated into the product, there is a Help button utility and a User forum. In addition, and to enable Subscriber to use Shoutlet as contemplated in this Agreement, Sway shall provide at its sole cost and expense, periodic webinars on the products features and their use and invite the Subscriber's Designated Personnel to participate in such webinar(s). 
6.02: Technical Support.  Provided Subscriber is not then in default of its obligations under this Agreement, Sway agrees to make support services available to Subscriber on an as-needed basis, in accordance with the terms of the Service Plan.  Subscriber may access such support services by emailing support@shoutlet.com. Should Subscriber desire to secure additional support services, the Parties shall negotiate an additional support agreement in good faith on commercially reasonable terms.
Article 7: Proprietary Rights, Confidentiality and Security
7.01: Ownership of Intellectual Property.  Intellectual Property that is incorporated into Shoutlet and/or used by Sway in performing the Services, including all improvements and modifications thereto, is and shall remain Sway's sole and exclusive property.  All Content and Customer Data provided by Subscriber are and shall remain the Subscriber's sole and exclusive property.  To the extent feasible, Subscriber shall mark all writings or other tangible embodiments of such Content and Customer Data "confidential" or "proprietary."
7.02: Confidential Information.  A Party that has received Confidential Information (a "Receiving Party") shall exercise the same degree of care with respect to the Confidential Information of the Party that has disclosed such Confidential Information (the "Disclosing Party") that it exercises with respect to its own Confidential Information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to the Disclosing Party's Confidential Information.  Notwithstanding the above:  (i) the Receiving Party may disclose the Disclosing Party's Confidential Information to its Designated Personnel who have a need to know and may disclose the Disclosing Party's Confidential Information if so required by law (including court order or subpoena), provided that such disclosure is made in accordance with the terms of Section 7.04.  Neither party shall disclose the other party's Confidential Information to any of its employees, agents, or representatives unless and until such employee, agent, or representative has been made aware that he or she is subject to the confidentiality provisions contained in this Agreement.
7.03: Return of Confidential Information.  Unless otherwise authorized, upon the earlier of the termination of this Agreement or the Disclosing Party's request, with respect to the Disclosing Party's Confidential Information, the Receiving Party shall promptly: (i) return all such Confidential Information to the Disclosing Party; or (ii) destroy such Confidential Information and provide certification to the Disclosing Party that all such Confidential Information has been destroyed.
7.04: Notification.  If the Receiving Party becomes aware of any unauthorized use or disclosure of the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Receiving Party or any of its employees or agents are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Disclosing Party's Confidential Information, the Receiving Party shall not disclose the Confidential Information without providing the Disclosing Party at least twenty-four (24) hours prior written notice of any such request or requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. Notwithstanding the foregoing, the Receiving Party shall use its best efforts to preserve the confidentiality of the Confidential Information including without limitation by cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.
7.05: Residuals.  Sway will not be precluded by this Agreement from rendering services or developing work products that are competitive with, or functionally comparable to, the Services rendered hereunder. Sway shall not be restricted in its use of ideas, concepts, know-how, methodologies and techniques acquired or learned in the course of activities hereunder.
7.06: Use of Statistical Data.  Subscriber acknowledges that a primary purpose of Shoutlet is to permit the collection and aggregation of demographic and other statistical data about Subscriber's customers, but excluding any personal information.  Subscriber agrees that Sway may use Subscriber's Confidential Information for the purpose of collecting such statistical data and thereafter either providing it to Subscriber or using it internally.
7.07: Advertising Agreement.  Subscriber shall have the option but not the obligation to participate in an Advertising Agreement with Sway.
7.08: Survival; No Limitation of Liability.  The terms of this Article shall survive the expiration or termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, any limitation of liability set forth in this Agreement shall not apply to any breach by a Party of its confidentiality obligations under this Article.
Article 8: Reproduction of Documentation, Object Code and Source Code
8.01: Documentation.  Subscriber shall have the right, at no additional charge, to reproduce solely for its own internal use, any documentation furnished by Sway pursuant to this Agreement or in connection with Shoutlet, regardless of whether such documentation is copyrighted by Sway.  All copies of documentation made by Subscriber shall include any proprietary notice or stamp that has been affixed by Sway, such as a copyright notice. If Sway produces any such documentation, Sway shall furnish, at no additional charge to Subscriber, one (1) copy of such documentation for each of Subscriber's employees initially designated as Designated Personnel.  Any such documentation shall be in the English language.
8.02: Source Code; Object Code.  Subscriber shall not have any right to reproduce Sway's source code or object code including without limitation, source code or object code pertaining to Shoutlet, without Sway's express written consent, the granting of which shall be at Sway's sole and absolute discretion.
Article 9: Warranty; Warranty Disclaimer
9.01: Warranties of Sway.  Sway warrants that it owns all right, title, and interest in and to Shoutlet and that, in the case of any third party software used to develop Shoutlet, it has the right to use such third party software for that purpose.  Sway further warrants that any Services provided by Sway under this Agreement shall be performed in a workmanlike manner and in accordance with the prevailing professional standards of the industry. This warranty coverage shall include any modifications made to Shoutlet by Sway.
9.02: Operation of Shoutlet.  Sway does not warrant that the operation of Shoutlet, or Subscriber's use thereof or access thereto, will be uninterrupted or error free.
9.03: Remedy.  In the event of any breach of the warranties set forth in this Agreement, Sway's sole and exclusive responsibility, and Subscriber's sole and exclusive remedy, shall be for Sway to correct or replace, at no additional charge to Subscriber, any portion of Shoutlet, or of the Services, found to be defective; provided, however, that if within a commercially reasonable period Sway neither corrects such defects nor replaces the defective portion(s) of Shoutlet or of the Services, then Subscriber's sole and exclusive remedy shall be to receive direct damages not to exceed the license fees paid to Sway for use of the defective portion(s) of Shoutlet or of the Services.  In the event of any breach of any provision of this Agreement other than the warranties set forth in this Agreement, Subscriber's sole and exclusive remedy shall be to receive direct damages not to exceed the amounts received by Sway pursuant to this Agreement. For the avoidance of doubt, Subscriber's monetary remedies for any breaches of any provision of this Agreement (including, without limitation, the warranty provisions) shall not, in the aggregate, exceed an amount equal to the amounts actually received by Sway from Subscriber.
9.04: Warranty Disclaimer.  EXCEPT AS SET FORTH IN THIS SECTION 9, SWAY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SHOUTLET OR THE SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY SUBSCRIBER. SWAY FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.05: UCITA Warranty Disclaimer.  The Parties hereby agree that, in respect of information and computer programs provided by one Party to the other Party under this Agreement, and except for the express warranties set forth in Section 9.01 of this Agreement,: THERE ARE NO WARRANTIES (I) AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION; (II) AGAINST INFRINGEMENT; (III) THAT INFORMATON, EITHER PARTY'S EFFORTS, OR SYSTEMS, AS EACH MAY BE PROVIDED UNDER THIS AGREEMENT, WILL FULFILL ANY OF EITHER PARTY'S PARTICULAR PURPOSES OR NEEDS; AND (IV) WITH RESPECT TO DEFECTS IN THE INFORMATION, SYSTEMS OR SOFTWARE THAT AN EXAMINATION SHOULD HAVE REASONABLY REVEALED.  THE PARTIES HEREBY EACH DISCLAIM IMPLIED WARRANTIES OF MERCHANTIBILITY, QUALITY, AND ACCURACY.  THE INFORMATION AND COMPUTER PROGRAMS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS IS" WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER OF SUCH INFORMATION AND COMPUTER PROGRAMS.
9.06: Voiding of Warranties.  Any and all warranties and indemnifications shall be void as to Shoutlet or the Services where the non-compliance is caused by or related to (i) the acts or omissions of non-Sway personnel, its agents or third parties; (ii) misuse, theft, vandalism, fire, water, or other peril; (iii) any alterations or modifications made to Shoutlet by the Subscriber, its representatives or agents; (iv) use of Shoutlet other than in the operating environment specified in the technical specifications; or (v) coding, information, or specifications created or provided by Subscriber.
Article 10: Subscriber's Representations and Warranties
10.01: Authority.  Subscriber represents and warrants to the Licensor that Subscriber has all requisite power and authority to execute and deliver this Agreement and to perform the Subscriber's obligations hereunder. This Agreement has been duly and validly executed and delivered by the Subscriber, and constitutes a valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. 
10.02: Financial Ability.  Subscriber represents and warrants to the Licensor that it presently has sufficient funds and will have sufficient funds available to timely pay Licensor all amounts due or that will come due under this Agreement.
10.03: Non-Infringement.  Subscriber represents and warrants to Sway that Content provided by Subscriber, used by Subscriber in connection with Shoutlet and/or used by Sway in connection with providing the Services shall not infringe any rights of any third party.
10.04: No Violation of Privacy Rights.  Subscriber represents and warrants that it has permission to use any Customer Data that it provides to Sway or uses in connection with Shoutlet and that Sway's use of any Customer Data provided by Subscriber shall not violate the right of privacy of any person to whom such Customer Data pertains.
Article 11: Indemnification; Limitation of Liability
11.01: Indemnification of Subscriber as to Proprietary Rights of Third Parties.
(a) Sway shall: (i) defend, or at its option, settle, any claim against Subscriber on the basis of Shoutlet's infringement of any United States patent, trademark, copyright or trade secret; and (ii) pay any final judgment entered against Subscriber on such claim or any settlement entered into by Sway on Subscriber's behalf, provided that: Subscriber (i) notifies Sway promptly of each such claim; (ii) gives Sway sole control of the defense and/or settlement of the claim; (iii) fully cooperates with Sway in the defense or settlement of the claim; and (iv) takes no action that may prejudice Sway's ability to defend the claim.
(b) If Shoutlet or any portion thereof is, or in Sway's opinion is likely to become, the subject of a claim of infringement, Sway may, in its sole discretion: (i) procure for Subscriber the right to continue using Shoutlet or the affected portion thereof; (ii) modify or replace Shoutlet or the affected portion(s) thereof with another suitable system; (iii) modify Shoutlet or the affected portion(s) thereof to make it non-infringing; or (iv) if none of the foregoing remedies is commercially feasible, Licensor shall refund, in exchange for Subscriber's cessation of use of Shoutlet or of the infringing portion(s) thereof, a pro-rated portion of the payments paid by Subscriber to Sway for Shoutlet or for the affected portion(s) thereof.
(c) Not withstanding the foregoing, Sway will have no obligation or otherwise with respect to any infringement or misappropriation claim based upon (i) any use of Shoutlet not in accordance with this Agreement or for purposes not intended by Sway; (ii) any use of Shoutlet in combination with other products, equipment, software or data not supplied by Sway; or (iii) any modification of Shoutlet made by any person other than Sway or without Sway's express consent.
(d) THIS SECTION STATES SWAY'S ENTIRE LIABILTY AND SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS.
11.02: Indemnification of Sway as to Proprietary and Privacy Rights of Third Parties.  Pursuant to its corresponding representations and warranties, Subscriber hereby indemnifies Sway with respect to Content and Customer Data provided to Sway for use in connection with the Services.
11.03: Limitation of Liability.  Sway shall not be liable for any: (i) special, indirect, incidental, punitive, or consequential damages, including loss of profits, arising from or related to the operation or use of Shoutlet or the Services, including such damages, without limitation, as damages arising from loss of data or programming, loss of revenue or profits, failure to realize savings or other benefits, damage to equipment, and claims against Subscriber by any third person, even if Sway has been advised of the possibility of such damages; (ii) damages (regardless of their nature) for any delay or failure by Sway to perform its obligations under this agreement due to any cause beyond its reasonable control; or (iii) claims made a subject of a legal proceeding against Sway more than twenty-four (24) months after any such cause of action first arose.  Notwithstanding any other provision of this agreement, Sway's liabilities under this agreement shall not exceed the lesser of: (i) the average monthly charge, or equivalent thereof, to Subscriber for the services performed under this agreement for the actual number of months during which the problem existed, or (ii) the actual amount of money damages incurred by Subscriber.  
Article 12: Error Correction and Uptime
12.01: Error Correction.  During the term of this Agreement, Subscriber shall notify Sway promptly of any errors or defects in Shoutlet or in the Services.  Sway shall use good faith efforts to correct any such errors or defects within a commercially reasonable time, but in any event shall correct all such errors or defects within ten (10) days of its receipt of Subscriber's notification.
12.02: Uptime.  Subscriber acknowledges that Sway cannot guarantee "uptime" of Shoutlet due to the fact that Shoutlet uses resources supplied by third parties and accessed by customers of such third parties and by other Shoutlet subscribers.
Article 13: Third Party Hardware and Services
13.01: Internet Access.  Subscriber acknowledges that it must have access to the Internet in order to use Shoutlet and the Services and that high-speed Internet access provides the best interface with Shoutlet.  Subscriber agrees to obtain such access from a third party at its own expense.
13.02: Hosting of Shoutlet.  Subscriber acknowledges that Shoutlet is hosted by a third-party Internet service provider, and that Sway has no control over the services and/or facilities of such third party.  Subscriber further acknowledges that, to the extent any "downtime" or outage experienced by Subscriber are the result of actions or omissions by such third party, its suppliers, customers, agents, affiliates or employees, Sway has no responsibility for such "downtime" or outage.  Sway's liability for "downtime" or outages is limited as set forth in Article 11.
Article 14: Miscellaneous
14.01: Assignment.  Subscriber may assign its rights and obligations under this Agreement to another Party only in connection with the sale of all or substantially all of its assets.  Sway may assign its rights and obligations under this Agreement in connection with any sale or other disposition of Shoutlet.  In the event of such assignment, the assigning Party shall promptly notify the other Party hereto.  This Agreement shall inure to the benefit of the Parties and their permitted successors and assigns.
14.02: Independent Contractors.  Nothing in this Agreement, nor any acts of the Parties, shall be deemed by the Parties or by any third person to create the relationship of principal-agent, or of partnership, or of joint venture, or of any association between the parties hereto, and no provisions of this Agreement are intended to create or constitute any person a third party beneficiary hereof.
14.03: Law and Venue.  This Agreement shall be governed by, and construed under, the laws of the State of Wisconsin (without regard to conflict of laws principles thereof).  The Parties expressly agree that jurisdiction and venue are proper in any state or federal court sitting in Dane County, Wisconsin.
14.04: Dispute Resolution.  Any dispute arising hereunder and not resolved by informal negotiations within thirty (30) days after a Party requests it shall be settled by binding arbitration under then-current American Arbitration Association rules by a single arbitrator.  If the Parties are unable to agree on a single arbitrator, then the dispute shall be settled by a panel of three arbitrators, selected as follows: each Party shall select a single arbitrator and the two arbitrators so selected shall select a third.  The arbitration shall be conducted at a mutually agreeable location in Madison, Wisconsin, or another venue agreed to by the Parties.  Judgment upon the award rendered may be entered in the highest state or federal court or forum having jurisdiction as provided in Section 14.03; provided, however, that the provisions of this Section 14.04 shall not apply to any dispute or controversy as to which any treaty or law prohibits such arbitration.  The prevailing Party shall be entitled to reasonable attorney's fees and costs to be fixed by the arbitrators. 
14.05: Amendments.  This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed by Sway and Subscriber.
14.06: Waiver.  No waiver of any default of Sway or Subscriber hereunder shall be implied from any omission by Sway or Subscriber to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and that only for the time and to the extent therein stated.  One or more waivers of any covenant, term or condition of this Agreement by Sway or Subscriber shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.  The consent or approval by Sway to or of any act by Subscriber requiring the Sway's consent or approval shall not be deemed to waive or render unnecessary Sway's consent or approval to or of any subsequent similar act by Subscriber.
14.07: Severability.  If any term, covenant or condition of this Agreement or the application thereof to any Party or circumstance is held to be invalid or unenforceable, then the remainder of this Agreement, or the application of such term, covenant or condition to Parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
14.08: Merger.  This Agreement and the other Contract Documents shall constitute the entire agreement of the parties pertaining to the subject matter hereof and shall supersede all prior or contemporaneous agreements and understanding of the parties in connection therewith.
14.09: Construction.
(a) The rule requiring written instruments to be construed against the party preparing such instruments shall not apply to this Agreement.
(b) The headings and recitals contained herein are intended for convenience only and shall not be construed to have any substantive effect with respect to this Agreement.
(c) Words used herein shall be deemed to include singular and plural, and any gender as the context requires.
14.10: Notices.  All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand, facsimile and confirmed in writing or mailed first class, postage prepaid, by registered or certified mail, return receipt requested (mailed notices shall be deemed to have been given three (3) days after mailing; notices sent by facsimile and confirmed in writing shall be deemed given on the date sent) as follows:
To Sway:

Jason Weaver
CEO of Sway, Inc.
8313 Greenway Boulevard
Suite 100
Middleton, Wisconsin 53562

With a copy to:

James I. Statz
Solheim Billing & Grimmer S.C.
One South Pinckney Street, Suite 301
P.O. Box 1644
Madison, Wisconsin 53701-1644

To Subscriber:
					
					
					
					


14.11: Force Majeure.  In the event that either Sway or Subscriber is delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock outs, labor disputes, inability to procure materials or services, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not attributable to the negligence or fault of the party delayed in performing work or doing acts required under the terms of this Agreement, then performance of such act shall be excused for the period of the unavoidable delay and the period for the performance of any such act shall be extended for an equivalent period.  Provided, however, that this provision shall not operate to excuse Subscriber from the timely remittance of payments required by the terms of this Agreement.
14.12: Counterparts; Facsimile.  This Agreement may be signed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  This Agreement may be executed by facsimile or other electronic transmission.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date and year first above written.

SWAY:

						
By: 						
Its: 								

SUBSCRIBER:
[INSERT SUBSCRIBER'S NAME]
						
By: 						
Its: 						


SCHEDULE 1.03
SHOUTLET
TERMS OF SERVICE AND ACCEPTABLE USE POLICY

	This Acceptable Use Policy (the "AUP") is intended to enhance the use of the Shoutlet services (the "Services") provided by Sway, Inc. ("Sway") for all users by preventing unacceptable uses of the Services.  All users of the Services (each, "You" or a "User") must comply with this AUP.  Sway does not undertake to actively monitor use of the Services under normal circumstances.  Similarly, Sway does not exercise editorial control over the content created or accessible over or through the Services.  However, in accordance with Sway's Subscriber and Services Agreement (the "Agreement") and the terms of this AUP, Sway may remove any materials that, in its sole and absolute discretion, may be illegal, may subject Sway to liability, or which violate this AUP.  Sway may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong.  Failure to abide by the terms of the AUP may result in immediate temporary or permanent limitation, suspension or termination of Your access to the Services, with or without notice.  This AUP should be read in conjunction with the Agreement and Sway's other policies, as applicable.

	By using the Services, You agree to abide by all local, state, federal and international laws, rules and regulations promulgated thereunder, the terms of the Agreement and this AUP and any other policies of Sway that are in force from time to time.  The provisions of this AUP are intended as guidelines and are not exhaustive.  Sway reserves the right to modify this and any other policies from time to time, to reflect changing the business needs of itself and its customers. 

1.	Violations of the AUP	

	The following actions constitute violations of this AUP:

a. Fraud.  It is a violation of this AUP to use the Services to transmit fraudulent information, including any information that you know or have reasons to know is false and on which you intend for others to rely or to make fraudulent offers to buy or sell products or services.
b. False advertising.  It is a violation of this AUP to transmit on or through the Services any advertising or promotional material(s) that contain false, deceptive or misleading claims or representations.
c. Unsolicited advertising.  It is a violation of this AUP to transmit on or through the Services any unsolicited advertising or promotional materials.  You assume sole responsibility for obtaining appropriate permission from third parties before transmitting advertising or promotional materials.
d. Intellectual Property.  It is a violation of this AUP to transmit on or through the Services any information that infringes or violates another person's or entity's copyright, patent, trademark, service mark, trade dress or other intellectual property rights or any information that reveals trade secrets belonging to another person or entity.
e. Harassment.  It is a violation of this AUP to use the Services to harass, threaten, abuse or embarrass, or to cause distress, unwanted attention or discomfort to, any person or entity in any way, including without limitation by the use of vulgar, hateful or racially, ethnically or otherwise discriminatory or objectionable material.
f. Threats.  It is a violation of this AUP to use the Services to transmit any material that threatens or encourages bodily harm or destruction of property.
g. Data collection.  It is a violation of this AUP to use the Services to collect or attempt to collect personal information about third parties without their knowledge and consent.  You assume sole responsibility for obtaining appropriate permission from such third parties before collecting any personal information and for ensuring that such personal information is collected and used only in conformity with such permission and with all applicable laws, rules and regulations.
h. Harm to minors.  It is a violation of this AUP to use the Services to harm, or attempt to harm, minors in any way.  It is the User's responsibility to ensure that any transmission of information to or collection of information from minors is conducted in compliance with applicable laws, rules and regulations.
i. Reselling.  It is a violation of this AUP to resell the Services without Sway's prior consent.
j. Service disruptions.  It is a violation of this AUP to use the Services in any way that inhibits or adversely affects the ability of other Users to access or use the Services.  Interference with or disruption of other Users, the Services or resources of Sway is strictly prohibited.  It is Your responsibility to ensure that Your network is configured securely, and You many not, through action or omission, allow others to use your network for actions that violate this AUP.  You may not permit Your network, through action or omission, to be configured in a way that gives a third party the ability to use Your network in a way that violates this AUP.
k. Excessive Size and Traffic Limitations.  Each User is allocated a certain amount of bandwidth for use in connection with the Services.  If Your use of the Services exceeds the allotted amount of bandwidth, any use in excess of such allotment may be restricted, at Sway's sole option.  Restrictions may include without limitation the inability to transmit information or to publish content via the Services.  It is Your responsibility to monitor and restrict appropriately your use of the Services to conform to the requirements of this AUP.
l. Other inappropriate uses.  It is a violation of this AUP to use the Services to transmit or publish any information that intentionally or unintentionally violates any applicable local, state, federal or international law or any rule or regulation promulgated thereunder. 


2.	Content

	As a matter of policy, and due to practical limitations, Sway does not pre-screen content transmitted or published by Users.  Although Sway reserves the right to monitor and restrict any attempted transmission or publication Sway does not have the practical ability to monitor, review or restrict prior to transmission or publication all content that may violate this AUP, nor can Sway ensure editing or removal of content that actually or potentially violates this AUP or applicable laws, rules or regulations after such content has been published or transmitted via the Services.  Sway accepts no responsibility for any of the content available on or published or transmitted through the Services or for any goods or services offered or available on or through the Services.  All such content, goods and/or services are made available by independent third parties and, as such, as now controlled by Sway.  Therefore, Sway does not endorse, warrant or guarantee such content, goods or services.

3.	Confidentiality
	
	You agree to maintain the confidentiality of passwords used to access the Services and to be responsible for any use made of Your password, whether authorized or unauthorized.  You agree that Sway has the right, but not the obligation, to monitor and/or disclose the contents of any communications if Sway, in its sole and absolute discretion, reasonably believes that such action is necessary to comply with applicable law or valid legal process or to protect Sway's rights, property and/or Services.

4.	Miscellaneous

  	By activating and/or using the Services, you agree that neither Sway nor its affiliates or service partners shall be responsible or liable, directly or indirectly, for any loss, liability or damage, including without limitation any financial loss or loss of data caused or alleged to have been caused by your use of the Services.  You further agree to indemnify Sway against and to hold it harmless from any liability caused or alleged to have been caused by any content, goods or services made available by You to third parties through the Services or by your use of the Services.  Sway expressly disclaims any liability to any third party.  

	Sway also expressly disclaims any liability to You or to any third party caused or alleged to have been caused by any Service Disruption.  A "Service Disruption" is any inability on the part of a User or third party to use or access the Services.

	In the event of a violation of this AUP, Sway reserves the right to limit or discontinue Your access to the Services and to take any and all preventative or corrective actions that Sway deems necessary or appropriate, in its sole and absolute discretion, to protect itself, other Users and third parties.