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Terms & Conditions
SWELL SERVICES TERMS AND CONDITIONS
1. License and Restrictions
(a) Grant of License. Swell grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to access and use the Services (as defined below) during the Term (as defined below) solely for the Permitted Purposes (as defined below), subject to the terms of this Agreement.
(b) Reservation of Rights. Unless otherwise agreed by the parties in writing under this Agreement, as between Swell and Customer, Swell is the sole and exclusive owner of all rights in the Services and all related products or services developed by Swell. All rights in the Services not expressly granted hereunder are hereby retained by Swell. Customer acknowledges that the Services are proprietary to Swell, may contain confidential and unpublished material and are protected by trade secret, copyright and other proprietary rights. Swell reserves the right to audit and enforce the limitations on the number of Users (as defined below) with which or by whom the Services are used in accordance with the Permitted Purposes through any means in its reasonable discretion, including without limitation, limiting use of the Services by means of individual security keys, authorization codes or lockout mechanisms, and creating auditable use records or embedded identifiers.
(c) Services. “Services” as used herein means the web-based platform and applications that are hosted by Swell (or a third party hosting facility designated by Swell), in the version designated in the Order Form, and any all documentation, enhancements, upgrades, and new releases or versions and any portion or component thereof provided by Swell to Customer during the Term.
(d) Permitted Purpose. “Permitted Purpose” as used herein means Customer’s internal business purposes.
(e) Customer’s Users. All use of the Services shall be by employees or bona fide independent contractors of Customer who need such use solely in connection with the Permitted Purposes (each, a “User”) and no other third party shall be permitted to use the Services under this Agreement. Customer shall be fully liable to Swell for any breach by any such employees or independent contractors of any of the terms and conditions of this Agreement.
2. Term and Termination
(a) Term of Agreement. The “Term” of these Terms and Conditions shall begin upon Customer’s acceptance of the terms and conditions of the Agreement (“Effective Date”) and continue for the length of the term designated in the Order Form and any renewal term thereof, unless earlier terminated by either party as provided herein (the “Term”).
(b) Termination. Either party may terminate these Terms and Conditions upon thirty (30) days written notice to the other party if such other party materially breaches any provision of these Terms and Conditions, provided, however, that Swell may immediately terminate these Terms and Conditions upon written notice to Customer if Customer breaches Section 1.
(c) Return of Confidential Information. Upon any expiration or termination of this Agreement, Customer agrees to immediately (i) cease using the Services; and (ii) deliver to Swell all Swell Confidential Information and all copies thereof.
(d) Survival. The provisions of Sections 1(b), 1(c), 1(d), 1(e), 1(f), 2(c), 2(d), 4-11 shall survive any termination or expiration of this Agreement.
3. Obligations of the Parties
(a) Compliance with Laws. Each party shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of its activities hereunder.
(b) Customer Responsibility for Technical Environment. Except as otherwise agreed by the parties in writing, Customer shall have sole responsibility for acquiring and maintaining its own technical environment, including but not limited to any hardware, development software, engine software and application software.
(c) Updates. Swell may provide updates to the Services based on feedback from Customer or otherwise from time to time. Customer agrees to utilize, test, and evaluate promptly any updates provided by Swell and, in any event, within five (5) days after receipt from Swell.
(d) Costs. Each party shall be responsible for its own costs incurred in connection with its activities contemplated under this Agreement.
4. Payment and Subscriptions
(a) Payment. Customer shall pay Swell in accordance with the Order Form. Prices shall be set forth in the Order Form and are non-creditable, non-recoupable and non-refundable. All prices are shown in U.S. dollars, and all applicable taxes and other charges, if any, are additional. A late payment charge of the lesser of 1.5% per month or the highest lawful rate may be applied to any outstanding balances until paid, and Customer shall be responsible for paying all such late charges.
(b) Credit Card Payments. By providing a credit card or other payment method that we accept, Customer represents and warrants that Customer is authorized to use the designated payment method and that Customer authorizes Swell (or Swell’s third party payment processor) to charge Customer’s payment method for the total amount of Customer’s Subscription (as defined below) or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, Customer’s Order may be suspended or cancelled. Customer must resolve any problem Swell encounters in order to proceed with the Order. In the event Customer wants to change or update payment information associated with Customer’s Swell account, Customer can do so at any time by logging into Customer’s account and editing the payment information in the settings. Customer acknowledge that the amount billed may vary due to promotional offers, changes to Customer’s Subscription or changes in applicable taxes or other charges, and Customer authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
(c) Continuous Subscriptions. SOME OF OUR SERVICES ARE OFFERED UNDER VARIOUS SUBSCRIPTION PLANS FOR SERVICES (EACH, A “SUBSCRIPTION”). BY REGISTERING FOR A SUBSCRIPTION, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A) SWELL (OR SWELL’S THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE CUSTOMER AT INTERVALS CONSISTENT WITH THE SELECTED SUBSCRIPTION FREQUENCY (E.G., MONTHLY OR ANNUALLY), IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES, FOR AS LONG AS THE SUBSCRIPTION CONTINUES, AND (B) CUSTOMER’S SUBSCRIPTION IS CONTINUOUS UNTIL CUSTOMER CANCELS IT OR SWELL SUSPENDS OR STOPS PROVIDING ACCESS TO THE SERVICES OR SUBSCRIPTION IN ACCORDANCE WITH THESE TERMS AND CONDITIONS. SWELL RESERVES THE RIGHT TO ADJUST PRICES AS SWELL MAY DETERMINE IN ITS SOLE DISCRETION, AT ANY TIME AND WITHOUT NOTICE; PROVIDED, HOWEVER, THAT IF SWELL CHANGES THE AMOUNTS OR OTHER CHARGES ASSOCIATED WITH CUSTOMER’S SUBSCRIPTION, SWELL WILL PROVIDE NOTICE OF SUCH CHANGES PRIOR TO SWELL’S NEXT PAYMENT BEING DUE. SWELL WILL NOT, HOWEVER, BE ABLE TO NOTIFY CUSTOMER OF CHANGES IN ANY APPLICABLE TAXES. CUSTOMER’S USE OF THE SUBSCRIPTION AFTER SWELL’S DELIVERY OF SUCH NOTICE WILL CONFIRM CUSTOMER’S ACCEPTANCE OF SUCH CHANGES, UNLESS CUSTOMER CANCELS ITS SUBSCRIPTION(S) IN ACCORDANCE WITH THE CANCELLATION POLICIES SET FORTH IN SECTION 4(d), AS APPLICABLE.
(d) Subscription Modifications and Cancellations. CUSTOMER MAY MODIFY OR CANCEL ITS SUBSCRIPTION BY CONTACTING SWELL DIRECTLY AT [email protected] MODIFICATIONS OR CANCELLATIONS MAY TAKE UP TO 7 BUSINESS DAYS TO PROCESS. ANY PAYMENT THAT IS MADE PRIOR TO THE PROCESSING OF ANY SUBSCRIPTION CHANGE CANNOT BE MODIFIED OR CANCELLED, AND CUSTOMER WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED FOR SUCH CHARGES.
(e) Taxes. Swell will collect applicable sales tax on Services for which Swell determines it has a duty to collect sales tax. If an item is subject to sales tax, Customer agrees that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
5. Ownership and Use of Services and Evaluation Results
(a) Ownership. Swell owns and shall own all right, title, and interest in and to the Services. Swell shall solely and exclusively own, and shall have the right to use in any manner, all oral and written evaluation results and any other reports, materials, information, ideas, concepts, and know-how provided by Customer under this Agreement, including without limitation in connection with any errors, defects, or deficiencies in the Services and any suggestions for corrections or improvements thereto, except to the extent of any Customer Confidential Information included therein (all the foregoing, collectively, “Evaluation Results”). Except for the license granted in Section 1(a) (Grant of License) hereof or as otherwise agreed in writing by the parties, Customer will not earn or acquire any rights or licenses in the Services or Evaluation Results, including without limitation any copyrights, patents, trademarks, service marks, trade secrets, moral rights, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein, on account of this Agreement or Customer’s performance hereunder. To the extent that by operation of law or otherwise, any right, title, or interest in or to the Services or Evaluation Results (including Intellectual Property Rights) vests in Customer or its employees or other representatives, Customer hereby irrevocably and unconditionally assigns and agrees to assign, and shall cause all such employees or other representatives to assign, to Swell and forever waives and agrees never to assert, and shall cause all such employees and representatives to forever waive and agree never to assert, any and all such right, title, and interest. Customer shall, and shall cause all such employees and other representatives to, execute all documents and take all other actions requested by Swell in connection with the foregoing assignments and waivers. At Swell’s request, Customer will assist Swell in obtaining protection for any Intellectual Property Rights in the Services and/or Evaluation Results arising out of this Agreement. Under no circumstances will Swell become liable for any payment to Customer for any Evaluation Results or other information that Customer provides hereunder, whether concerning the Services or otherwise, no matter how such Evaluation Results and information are used or exploited by Customer or anyone else.
(b) Use. Without limiting the foregoing in Section 5(a) (Ownership), Customer agrees that Swell shall have the right to use, in any manner and for any purpose, any information, including without limitation Evaluation Results, gained as a result of Customer’s use, testing, and/or evaluation of the Services; provided, however, that Swell shall not use any Customer Confidential Information included therein without Customer’s prior written approval, which shall not be unreasonably withheld, conditioned, or delayed.
Except to the extent agreed upon in the Order Form or as otherwise agreed by the parties in writing, Swell shall have no obligation under this Agreement to correct any bugs, defects, errors, or other deficiencies in the Services or to otherwise support or maintain the Services.
(a) Acknowledgment of Trade Secrets. Customer acknowledges that the Services, Evaluation Results, and all other information, data, and materials, whether in oral, written, or machine-readable form, either provided by Swell to Customer, or generated by Swell or Customer, in connection with this Agreement, exclusive of Customer Confidential Information (all the foregoing, collectively, “Swell Confidential Information”) contains and comprises valuable trade secrets, confidential information, and Intellectual Property Rights owned by Swell, including but not limited to the development status of the Services, the functionality, operability, and other aspects of the Services, the appearance, content and flow of the Services’ screens, the method and pattern of user interaction with the Services, and the content of the Services’ documentation.
(b) Restrictions. The same duties and obligations of, and restrictions on, Customer and its Users set forth in Section 1(a) (Grant of License) hereof with respect to the Services shall also apply to Customer and its employees and other representatives with respect to all Swell Confidential Information. Without limiting the foregoing, Customer shall take all reasonable precautions to prevent unauthorized disclosure or use of Swell Confidential Information, including without limitation all precautions that Customer takes to protect its own confidential and proprietary information.
(c) Confidential Information. Swell will hold any information related to the business and operations of Customer to which Swell may have access, including without limitation Use Data, (collectively, “Customer Confidential Information”) in strict confidence and not use, sell, or in any way disclose any such Customer Confidential Information except as expressly permitted in this Agreement. Swell will employ all reasonable steps to protect such information from unauthorized disclosure or use. Swell may disclose such information only to its employees with a need to know in connection with using, testing, supporting and evaluating the Services. Swell will instruct all such employees in advance that they must comply with the restrictions set forth herein. Swell shall have no obligation to maintain the confidentiality of any Customer Confidential Information which (a) is or becomes publicly available without breach of this Agreement by Swell; (b) is rightfully received by Swell from a third party without an obligation of confidentiality and without breach of this Agreement; (c) is developed independently by Swell without access to or use of the Customer Confidential Information; or (d) has been approved for release by written authorization of Customer.
8. Limited Warranty; Disclaimer
(a) Limited Warranty. Subject to the limitations set forth in Section 8(b) and Section 8(c), Swell warrants to Customer that during the Term (the “Warranty Period”) the Services will not deviate materially from Swell’s published specifications, user guides and manuals for such Services provided or made accessible to Customer (collectively, “Documentation”); provided, however, that Customer operates such Services in accordance with the standard operating procedures outlined in such Documentation.
(b) Customer Requirements. The limited warranty set forth in Section 8(a) shall only apply where Customer (i) notifies Swell in writing of the warranty breach before the expiration of the Warranty Period; (ii) has promptly installed all updates to the Services that Swell previously made available to Customer in accordance with Section 3(c); and (iii) as of the date of notification, is in compliance with all other terms and conditions of this Agreement (including the payment of all license fees then due and owing).
(c) Exceptions. The limited warranty set forth in Section 8(a) shall not apply to problems arising out of or relating to (i) any third party software or hardware that are operated with or incorporated into the Services; (ii) Customer’s or any third party’s negligence, abuse, misapplication or misuse of the Services, including any use of the Services other than as specified in the Documentation or expressly authorized by Swell in writing, and Customer’s failure to comply with any minimum system requirements; (iii) Customer’s failure to promptly install all updates that Swell has previously made available to Customer in accordance with Section 3(c); (iv) the operation of, or access to, Customer’s systems or network; (v) Customer’s material breach of any provision of this Agreement; or (vii) any other circumstances or causes outside of the reasonable control of Swell (including abnormal physical or electrical stress).
(d) Remedial Efforts. If Swell breaches any of the warranties set forth in Section 8(a), Swell may, at its sole option and expense, take any of the following steps to remedy such breach (i) amend, supplement or replace any incomplete or inaccurate Documentation; (ii) repair the Services; (iii) replace the Services with functionally equivalent services; and/or (iv) terminate this Agreement and, provided that Customer fully complies with of its post-termination obligations as set forth in this Agreement, promptly provide to Customer a pro rata refund of the license fees previously paid by Customer for the applicable Services for the six (6) months prior to the termination of this Agreement.
(e) Sole Remedy. If Swell does not cure a warranty breach or terminate this Agreement as provided in Section 8(d) within a reasonable period of time after Swell’s receipt of written notice of such breach, Customer shall have as its sole remedy the right to terminate this Agreement, and, provided that Customer fully complies with of its post-termination obligations as set forth in this Agreement, Swell shall promptly provide to Customer a pro rata refund of the license fees previously paid by Customer for the applicable Services, for the six (6) months prior to the termination of this Agreement.
(f) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SWELL MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING USE OF OR RELIANCE ON THE SERVICES AND THE SERVICES ARE PROVIDED “AS IS.” THE WARRANTIES OF SWELL AND THE REMEDIES OF CUSTOMER SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND SWELL HEREBY DISCLAIMS ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF CUSTOMER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, DATA ACCURACY, OR NONCONFORMITY IN THE SERVICES, DOCUMENTATION OR ANYTHING ELSE FURNISHED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF SWELL (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (D) CLAIM OF INFRINGEMENT. SWELL DOES NOT WARRANT THAT OPERATION OF OR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR ENTIRELY SECURE. CUSTOMER WILL BEAR ALL RISK ASSOCIATED WITH ANY USE OF THE INTERNET OR OTHER MEANS OF COMMUNICATION OR DATA TRANSMISSION BY OR ON BEHALF OF CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO ANY VIRUS OR HARMFUL CODE RESULTING THEREFROM, AND SWELL DISCLAIMS ALL LIABILITY AND RESPONSIBILITY IN CONNECTION WITH SUCH USE. Customer agrees and acknowledges that loss of data and records is a risk in connection with this Agreement and, therefore, agrees to configure and backup its computer system environment to prevent the activities contemplated hereunder from causing business interruption, loss of Customer data, or other loss or damage.
9. Limitation of Liability
(a) DAMAGES LIMITATION. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, SWELL SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE SERVICES OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS OR CUSTOMER PRODUCTS, LOSS OF ANY GOODWILL, LOST, DESTROYED OR CORRUPTED DATA, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SWELL SHALL BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SUCH LIABILITY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CAUSE OF THE CLAIM.
(b) Data Protection. Customer agrees that it shall not disclose or otherwise provide Swell with access to (whether through the Services or otherwise) any Customer data of any type, except to the minimum extent necessary for Swell to perform the support services or provide Customer with the license to the Services as provided for in this Agreement. Customer further agrees that each party shall have the sole responsibility for protecting its data used in connection with the Services.
(a) By Swell. Swell shall defend, at its expense, any claim, lawsuit or related action brought against Customer alleging that the Services infringes a United States patent or copyright, and shall pay all costs and damages finally awarded, provided that Swell is given prompt written notice of such claim, any information in the possession of Customer related to such claim, reasonable assistance by Customer and sole authority to settle or defend such claim. In the event of any such claim, Customer, upon Swell’s request, shall immediately cease using the Services and comply with Section 2(c) of these Terms and Conditions, and Swell will use commercially reasonable efforts to (1) procure for Customer the right to continue to use the Services as set forth in this Agreement, (2) provide a reasonable workaround solution, or (3) replace or modify the Services to make its use non-infringing, or, if alternatives (1)-(3) are not practicable, to refund a prorated portion of the fees paid by Customer for the affected Services (calculated on a twelve (12) month usable life) and terminate this Agreement as to the affected Services upon written notice to Customer. Swell shall not have any liability or obligations under this Section 10 if the alleged infringement is based upon or results from (a) use of the Services or any Customer product (i) in combination with any other computer programs not licensed by Swell to Customer; (ii) other than as permitted hereunder; or (iii) other than in accordance with its applicable Documentation; (b) any act or omission of any party other than Swell; or (c) any third party software or equipment that is used in connection with the Services.
(b) By Customer. Customer shall indemnify, defend, and hold harmless Swell and its employees, officers, directors, agents and other representatives from and against all claims, actions, demands, and suits by third parties, and all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys’ fees) arising from or in connection with (i) any negligence, willful misconduct, or breach of this Agreement by Customer or its employees or other representatives, including any allegation that any third party software or other services (other than the Services) used by Customer infringes a United States patent or copyright; or (ii) any activities relating to the use of the Services or the development, marketing, sale, or distribution of any Customer product.
11. Other Provisions
No Assignment. Customer shall not assign, delegate, or otherwise transfer in any way either this Agreement or any of Customer’s rights, duties or and obligations hereunder without the prior written consent of Swell.
Force Majeure. No party shall be responsible for any delay or failure to perform obligations specified in this Agreement due to unforeseeable causes beyond the party’s reasonable control.
(c) Independent Parties. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between Swell and Customer.
(d) Waiver. The waiver or failure of either party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under these Terms and Conditions.
(e) Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement shall be unimpaired, and the invalid term or provisions shall be replaced by such valid term or provisions as comes closest to the intention underlying the invalid term or provision.
(h) Amendments. No amendment or modification of any provision of these Terms and Conditions shall be effective unless the same shall be in writing and signed by both parties.
(k) Equitable Relief. Customer acknowledges that any breach of its obligations under these Terms and Conditions with respect to Swell’s Intellectual Property Rights or Confidential Information will cause Swell irreparable injury for which there are inadequate remedies at law, and, therefore, Swell will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or equity.