Terms and Conditions

Updated as of November 10, 2021

These Terms and Conditions (this “Agreement”) govern the Subscription Order Form executed by you as, or on behalf of, the customer identified in the Subscription Order Form (the “Customer”) for the Services provided by SocialSwell, Inc., a Delaware corporation dba Swell CX (“Swell”). You represent that if you are entering into this Agreement on behalf of your employer, or any other entity or person as the Customer, you are duly authorized by your employer, such other entity or such other person to enter into this Agreement which will be binding upon such employer, other entity or person (and “Customer” as used in this Agreement shall refer to such employer, other entity or person). 

1. Definitions. 

1.1.App” means the app made available by Swell to Customer, which may be updated from time to time.

1.2.Authorized Users” means designated individuals authorized by Customer to use and operate the Services on behalf of Customer under this Agreement and who have agreed to comply with the applicable terms and conditions of this Agreement. Authorized Users may include Customer’s employees, contractors and agents but may not include competitors of Swell.

1.3.Customer Branding” means trademarks, service marks, trade names, business names, trade dress, logos, URLs, or other trademark and branding rights owned, controlled or licensed by Customer.

1.4. “Customer Content” means any data (including Personal Data), information, files, content, texts, images and any other materials (including Personal Data) transmitted by Customer, Authorized Users, and Users through the use of the Services. 

1.5. Customer Portal” means Swell’s web-based portal through which Customer may manage its account, establish accounts for Authorized Users, and access other features and functionality made available thereon from time to time. 

1.6. "Intellectual Property Rights” means all copyrights, trademarks (including all goodwill associated therewith), trade secrets, patents, moral rights, industrial rights and all other intellectual, proprietary and other rights, including without limitation, (a) all rights, whether existing now or in the future, whether statutory or common law, whether subject to protection under statute, regulation or common law, in any jurisdiction in the world, together with all national, foreign and state registrations, applications for registration and all renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisionals, reissues, substitutions and reexaminations); (b) all benefits, privileges, causes of action and remedies relating to any of the foregoing, whether before or hereafter accrued (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions); and (c) all rights to sue for all past, present and future infringements or other violations of any of the foregoing rights, and the right to settle and retain proceeds from any such actions. 

1.7.Liability” means any claims, losses, penalties, fines, expenses (including reasonable attorney’s fees and litigation costs), damages and other liability.

1.8.Personal Data” means any information that identifies or can be used to identify an individual.

1.9.Services” means the hosted services described on the Subscription Order Form provided by Swell to Customer, the App, the Customer Portal, and any documentation made available by Swell related to any of the foregoing.

1.10.Subscription Order Form” means the order describing the Services to be provided by Swell to Customer under this Agreement and the fees therefor. The specific Services purchased by Customer under this Agreement may be amended from time to time by the parties by an amendment of the then applicable Subscription Order Form.

1.11.Term” shall have the meaning set forth in Section 9.1.

1.12.Terms and Conditions” means the end user license agreement and any other terms and conditions which govern the access and use of the Services by Authorized Users.

1.13.Users” refers to the individuals with whom Customer communicates, transmits information and files, and otherwise transacts with through the use of the Services, including via SMS text messaging and email.

2. Changes to this Agreement Swell reserves the right to update or make changes to this Agreement from time to time in its sole discretion, and we may notify Customer of changes by any reasonable means, including without limitation, by notifying Customer at the email address provided by Customer, by posting the revised version of this Agreement at least thirty (30) days in advance on Swell’s website or otherwise notifying Customer through the Services. Please read this TOS carefully before using the Services and check this TOS again each time you use the Services in the future, as they may change from time to time. You can determine when this TOS was last revised by referring to the “Updated” legend at the top of this TOS. Please return to this TOS to ensure familiarity with the most current version of this TOS. Your continued access or use of the Service after any changes to this TOS have been posted shall constitute your agreement and consent to the then-current version of this TOS in full

3. Services.

3.1. License to Access and User the Services. The Subscription Order Form executed by Customer describes the Services to be provided by Swell to Customer during the Term and fees to be paid by Customer.  Swell will provide the Services described in the Subscription Order Form in accordance with Swell’s documentation applicable to such Services. Subject to the terms and conditions of this Agreement, Swell grants to Customer a personal, non-exclusive, non-transferable (except as permitted under Section 11.3), non-sublicenseable license in the United States, during the Term to access and use the Services. 

3.2. Restrictions and Obligations. Customer agrees (on behalf of itself and its Authorized Users) not to: (a) access or use the Services in any way not expressly permitted under permitted Section 3.1 hereof; (b) sell, rent, lease, sublicense, pledge, assign (except as permitted under Section 11.3) or otherwise transfer Customer’s rights, in whole or in part, to access and use the Services to any third party or otherwise make the functionality of the Services to any third party; (c) modify, adapt, translate or create derivative works based on the Services; (d) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Services; (e) use or access the Services in any way not in compliance with applicable law; (f) decompile, disassemble or otherwise reverse engineer, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in, any portion of the Services; or (g) interfere with or disrupt the integrity, security features or performance of the Services or third-party data contained therein or otherwise attempt to gain unauthorized access to the Services or any associated systems or networks by penetration testing or otherwise. Customer will not permit or encourage any third party to do any of the foregoing.

3.3. License to Swell. Customer grants to Swell a personal, non-exclusive, non-transferable (except as permitted under Section 11.3), royalty-free, fully paid up, right and license to: (a) use, reproduce and display the Customer Branding in connection with the provision of the Services, and (b) use, reproduce, format, transmit, process, store and receive Customer Content in connection with the provision of the Services.  Swell may list Customer as a customer of Swell, including displaying the Customer Branding, on Swell’s website and marketing materials. Swell will reasonably comply with Customer’s written trademark use policies provided to Swell in advance in connection with Swell’s use of the Customer Branding.  

3.4. Authorized Users. Subject to the terms and conditions of this Agreement, Customer may permit Authorized Users to access and use the Services on Customer’s behalf in compliance with the terms and conditions of this Agreement, provided that all actions and omissions of Authorized Users in accessing and using the Services shall be deemed the actions and omissions of Customer under this Agreement. Customer will be responsible and liable to Swell for any breach of the applicable terms of this Agreement by any of its Authorized Users. Customer acknowledges and agrees that Authorized Users will be required to (a) register with Swell as authorized users of Customer, and (b) agree to be bound by additional Terms and Conditions, as determined by Swell in its sole discretion. Swell reserves the rights to modify the Terms and Conditions from time to time, and to provide notice of any modifications in any reasonable manner, including by posting modified Terms and Conditions on the Services. Customer acknowledges that even if Authorized Users are required to agree to other or additional terms and conditions (including Terms and Conditions) applicable to Authorized Users generally in their access and use of the Services, such terms and conditions between Authorized Users and Swell shall not affect the obligations or liability of Customer to Swell under this Agreement.

3.5. Registration; App. Customer and its Authorized Users must first register at the Customer Portal in order to access and use the Services. After such registration, Customer and its Authorized Users may also use the App to access and use the Services. Customer agrees that if Customer and its Authorized Users: (a) download the App from Google Play, then Google Play’s rules and policies (including those found at https://play.google.com/about/play-terms/ or successor terms) may also apply, and (b) download the App from the App Store, then the App Store’s rules and policies (including those found at https://www.apple.com/legal/internet-services/itunes/ or successor terms) may also apply.

3.6. Customer Portal. During the Term of this Agreement, Customer may permit its Authorized Users to access and use the Customer Portal on behalf of Customer. Customer agrees (on behalf of itself and its Authorized Users) that: (a) in registering to access the Customer Portal, Customer and Authorized Users will provide true, accurate and complete information and will update such information so that it remains true, complete and accurate; (b) Customer and Authorized Users will maintain the confidentiality and security of the login credentials used to access the Customer Portal (“Login Credentials”); (c) Customer and Authorized Users will not transfer, share, disclose or resell such Login Credentials or otherwise share or transfer access to the Customer Portal to any third party; and (d) Customer and Authorized Users will promptly notify Swell of any unauthorized use of such Login Credentials or unauthorized access to the Services through Customer’s and Authorized Users’ accounts with Swell. Swell will not have any Liability arising from Customer’s or its Authorized Users’ failure to comply with the foregoing, and Customer is entirely responsible for all activities taking place through Customer’s and its Authorized Users’ accounts and for any other actions or omission by its Authorized Users.

3.7. Aggregated Data. As between Customer and Swell, the Customer Content shall be exclusively owned by Customer, who will ensure and be responsible for the accuracy, completeness and legality of the Customer Content. Customer hereby grants to Swell a worldwide, non-exclusive, royalty-free, fully paid up, non-transferable (except as permitted under Section 11.3) right and license: (a) during the Term, to use, store, process, modify, transmit, reproduce, distribute and display Customer Content for the purposes of providing the Services, performing its obligations under this Agreement and complying with applicable law or legal requirements; (b) during and after the Term, to internally use, store, process, modify and reproduce the Aggregated Data for Swell’s internal business purposes, including development, diagnostic, forecasting, planning, analysis and corrective purposes in connection with the Services, and for otherwise improving and enhancing the Services; and (c) during the after the Term, to distribute, disclose and otherwise exploit in any manner Aggregated Data for Swell’s business purposes, including disclosure within its public statements and marketing materials describing and/or promoting Swell and/or the Services. “AggregatedData” means any data obtained by Swell, including data pertaining to the Services, Swell’s systems and software, and the use of any of the foregoing, and data which may be derived from Customer Content, which in all instances (i) does not identify an individual and (ii) is not attributed to Customer. Aggregated Data includes data that has been combined into databases which include third party data.

3.8. Feedback. With respect to comments, suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Authorized Users (“Feedback”), Customer hereby grants (on behalf of itself and its Authorized Users) to Swell a non-exclusive, perpetual, irrevocable, world-wide, royalty-free, fully paid up, sublicenseable, transferable, right and license, with full rights to grant sublicenses, to use, make, have made, offer for sale, sell, license, import, copy, create derivative works of, distribute, perform, transmit, and display and otherwise exploit such Feedback for any and all purposes whatsoever, without restriction.

3.9. Integrations with Third Parties. Customer acknowledges that the Services may, from time to time, offer Customer the ability to access Customer’s accounts with third parties (“Third Party Accounts”) through Customer’s account for the Services, which may include the ability by Customer to generate and transmit information, files and data from and to such Third Party Accounts via the Services and to effect transactions with such Third Party Accounts, subject to the authorizations, terms and conditions applicable to Customer’s Third Party Accounts. Swell reserves the right, from time to time, to modify or terminate such integrations by advance written notice to Customer. Customer acknowledges and agrees that (a) in accessing such Third Party Accounts, Customer will at all times comply with the terms and conditions of the applicable agreements with such third parties governing Customer’s access and use of such Third Party Accounts, (b) Customer will not access or attempt to access such Third Party Accounts except through Customer’s own current valid account access credentials, (c) Customer will indemnify and hold Swell harmless from any and all Liability arising from Customer’s access or use of its Third Party Accounts via the Services and any activity taking place on Customer’s Third Party Accounts, and (d) Customer may be required to agree to additional or different terms and conditions in order to have access (or have continued access) to its Third Party Accounts via the Services. Customer acknowledges and agrees that Swell does not provide, makes no warranties, and will have no liability with respect to the products and services made available by third parties through Customer’s Third Party Accounts accessed via the Services. Additionally, Customer acknowledges and consents to Customer Content being transmitted to and from third parties, including to and from Customer’s Third Party Accounts.

3.10. Support. During the Term, Swell will provide standard technical support services for the Services in accordance with Swell’s then-effective standard support policy applicable to the Services purchased by Customer.

3.11. Compliance with Applicable Law; CCPA. In accessing and using the Services, Customer and its Authorized Users will comply with any and all local, state and federal laws (“Applicable Law”), including without limitation: (a) the Telephone Consumer Protection Act (47 U.S.C. § 227) and rules promulgated thereunder and the Telemarketing Sales Rule; (b) the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (also known as the CAN-SPAM Act); (c) state and federal do-not-call laws; and (d) export control laws and regulations of the United States and other jurisdictions. With respect to the California Consumer Privacy Act (“CCPA”): (i) the parties acknowledge and agree that Swell is a “service provider” as that term is defined therein; (iii) the parties shall safeguard and hold all personal information (as defined in the CCPA), and (iii) the parties shall not disclose such personal information except when disclosure is (x) required by law, (y) required in order to provide the Services, or (z) authorized by Customer in writing, including as described in this Agreement.

3.12. Permission to Communicate with Users; Stopping Communications. Customer represents and warrants that it has obtained all requisite permissions, consents and authorizations from Users, as required by Applicable Law, to send text, email or other electronic messages and other communications to Users and to otherwise contact Users through the use of the Services.  Customer will immediately cease all communication through the Services with Users who indicate (whether through the use of the Services or otherwise) that they wish to opt-out, unsubscribe, stop receiving communications or otherwise wish not to be contacted by or behalf of Customer (“Opt Out”).  Swell reserves the right to, without an obligation to monitor Customer’s activity and use of the Services, terminate communications through the Services with any User who has Opted Out. 

3.13. Changes to the Services. Customer understands and agrees that Swell may, from time to time, in Swell’s sole discretion, improve, enhance, modify and/or expand the features and functionality of the Services during and after the Term at no additional cost to Customer. Swell shall use commercially reasonable efforts to provide Customer with prior written notice of any such changes.

4. Payments

4.1. Fees and Payment. Customer will pay Swell the applicable fees set forth in the Subscription Order Form and in the manner described in the Subscription Order Form. Any amounts payable to Swell under this Agreement which are not paid by the due date thereof shall bear interest, calculated at one percent (1.0%) (or the maximum amount permitted by applicable law, whichever is lower) per month or fraction thereof, until the full amount due is paid in full. In the event that fees and charges are not paid within ten (10) days after the due date thereof, Swell shall have the right to suspend the Services until all amounts due are paid. If Customer disputes any amounts on an invoice, Customer shall pay all undisputed amounts and provide written notice of the disputed amounts to Swell, including in reasonable detail the basis for such dispute, no later than the due date of such invoice. If Customer has not provided such notice by the due date of the applicable invoice, Customer shall not have the right to dispute such invoice.

4.2. Taxes. Customer will be responsible to pay and will pay directly, and agrees to indemnify and hold Swell harmless from and against, any and all taxes, levies or duties imposed by any local, state, federal or international taxing authority, including any applicable sales, VAT, use, excise, and withholding taxes on the transactions or payments made by Customer to Swell under this Agreement, other than taxes based on Swell’s net income.

4.3. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.

5. Ownership

5.1. Ownership by Swell.  Swell shall retain and shall exclusively own all right, title and interest (including all Intellectual Property Rights) in and to the Services, and all components thereof, and the networks, systems and software used by Swell in the provision of the Services. 

5.2. Ownership by Customer.  Customer shall retain and shall exclusively own all right, title and interest (including all Intellectual Property Rights) in and to the Customer Branding and Customer Content provided to Swell under this Agreement. 

5.3. Reservation of Rights.  Each party reserves all rights not expressly granted to the party under this Agreement. 

6. Warranties; Disclaimers. 

6.1. Warranty.  Swell hereby warrants to Customer that during the Term the Services will materially conform to the specifications, if any, contained in the Subscription Order Form.  In the event of a breach of the warranty set forth in this Section 6.1, Swell agrees, as Swell’s sole and exclusive obligation and Customer’s sole and exclusive remedy, to use commercially reasonable efforts to provide corrected Services.  In the event that Swell is unable to provide corrected Services within a reasonable time after receipt of notice from Customer, Customer shall have the right, as its sole and exclusive remedy, to terminate the affected Services, provided that Customer shall be required to pay for the Services through the date on which such breach occurred.

6.2. No Other Warranties.  EXCEPT FOR ANY EXPRESS WARRANTIES MADE IN THIS AGREEMENT, SWELL MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY OTHER MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE SERVICES PROVIDED HEREUNDER, AND SWELL HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SWELL CANNOT GUARANTEE AND MAKES NO WARRANTY THAT (A) THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; OR (C) ANY DEFECT OR MALFUNCTION IN THE SERVICES IS CORRECTABLE OR WILL BE CORRECTED.  THE LIMITED WARRANTY PROVIDED IN SECTION 6.1 WILL NOT APPLY TO, AND SWELL WILL HAVE NO WARRANTY OBLIGATION WITH RESPECT TO, (I) ANY DEFECT OR MALFUNCTION RESULTING FROM MODIFICATION OR IMPROPER USE OF THE SERVICES, OR (II) ANY CAUSE OTHER THAN ORDINARY USE OF THE SERVICES.  

7. Confidentiality

7.1. Confidential Information.  By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”).  For purposes of this Agreement, “Confidential Information” of a party means information relating to a disclosing party, its business, technology, suppliers, licensors, customers, and third parties to whom the disclosing party has an obligation of confidentiality, whether disclosed orally, in writing or otherwise, that is marked or described as confidential or proprietary or provided under circumstances reasonably indicating that it is confidential or proprietary.  Confidential Information includes, without limitation, business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines; and all personnel, customer, contracts and financial information or materials disclosed or otherwise provided by such party (“Disclosing Party”) to the other party (“Receiving Party”).  Confidential Information of a Disclosing Party shall be owned by such Disclosing Party.  Confidential Information does not include that which (a) is already in the Receiving Party’s possession at the time of disclosure to the Receiving Party, (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (c) is obtained by the Receiving Party from a third party without a duty of confidentiality, or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.  

7.2. Obligations. The Receiving Party agrees: (a) to protect the Confidential Information of the Disclosing Party from unauthorized disclosure and use; (b) to use the Disclosing Party’s Confidential Information solely for performing the Receiving Party’s obligations and exercising the Receiving Party’s rights hereunder; (c) not to disclose any Confidential Information of the Disclosing Party, or any part or parts thereof, except to the Receiving Party’s employees and contractors with a “need to access” such information who are obligated to maintain the confidentiality of such Confidential Information under similar terms and conditions as in this Section 7.  The Receiving Party shall protect the Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances.  

7.3. Exclusions.  The Receiving Party may disclose the Confidential Information of the Disclosing Party if the Receiving Party is legally compelled to do so, provided that prior to any such compelled disclosure, the Receiving Party shall (if legally able to) notify the Disclosing Party of such compelled disclosure and shall cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.

8. Indemnification

8.1. Indemnification by Customer.  Customer shall indemnify, defend and hold Swell and its successors and assigns harmless from and against any Liability arising from: (a) a claim alleging that the Customer Content or Customer Branding, or any portions thereof, infringe or misappropriate, derogate or violate a third party’s Intellectual Property Rights, rights to publicity or privacy, or other rights, or that any Customer Content is defamatory or obscene; and (b) arising from Customer’s breach of its obligations under Sections 3.11 and 3.12.  

8.2. Indemnification by Swell.  Swell shall defend and hold Customer and its successors and assigns harmless from and against any third party claim: (a) alleging that Customer’s and its Authorized Users’ use of the Services in accordance with this Agreement infringes or misappropriate such third party’s copyrights, trademarks, or trade secrets or rights to publicity or privacy (“Third Party IP Infringement Claim”). If a Third Party IP Infringement Claim occurs, or in Swell’s opinion is reasonably likely to occur, Swell may, at its expense and at its sole discretion, in addition to its indemnification obligations under this Section 8.2: (i) procure the right to allow Customer to continue to use the Services (or infringing portions thereof), or (ii) modify or replace the Services (or infringing portions thereof) to become non-infringing without degrading the functionality thereof, or (iii) if none of the two (2) foregoing options is commercially reasonable, terminate Customer’s right to use the affected portion of the Services and refund, on a pro-rata basis, any unused portion of the fees paid by Customer for the affected portion of the Services. Notwithstanding anything else in this Section, Swell shall have no obligations under this Section 8.2 to the extent the Third Party IP Infringement Claim arises out of or relates to: (x) any combination or use of the Services or components thereof with other products, content, software or services not provided by Swell under this Agreement, (y) Customer Branding, Customer Content, or (z) any unauthorized use of the Services.  The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and Swell’s entire liability, with respect to infringement or violation of third party Intellectual Property Rights

8.3. Indemnification Procedures. In seeking indemnification for third party claims under this Section 8, the indemnified party: (a) will provide the indemnifying party with prompt written notice of any claim for which indemnification is sought, provided, however, that the failure to give timely notice will not relieve the indemnifying party of its obligations under this Section except to the extent that such untimely notice impairs the ability of the indemnifying party to defend or settle the claim; (b) cooperate with the indemnifying party (at the indemnifying party’s expense) and provide reasonable assistance and information; and (c) permit the indemnifying party to control and direct the defense or settlement of any such claim, provided that the indemnifying party will not settle any claim which settlement terms requires the indemnified party to admit liability without the indemnified party’s prior written consent. The indemnified party may participate in the defense and settlement of such claim at the indemnified party’s sole expense.

9. Term and Termination

9.1. Term.  The term of this Agreement shall commence on the Effective Date and continue for the initial term set forth in the Subscription Order Form (the “Initial Term”), unless earlier terminated by a party in accordance with this Section 9.  The term may automatically renew as described in the Subscription Order Form.  Unless the parties agree otherwise in writing, the same Services shall renew for any renewal term of this Agreement.  The Initial Term and renewal term(s), if any, are herein referred to as the “Term.

9.2. Termination for Breach.  If either party materially breaches this Agreement, the non-breaching party, at its option, shall have the right to terminate this Agreement by written notice to the breaching party unless, within thirty (30) calendar days (or ten (10) calendar days, if for a payment breach) after receipt of written notice of such breach by the breaching party, the breaching party cures such breach.  During the applicable thirty (30) day or ten (10) day cure period, Swell shall have the right, at its sole discretion, to suspend the Services under this Agreement.  

9.3. Termination for Bankruptcy.  Either party may terminate this Agreement immediately upon written notice to the other party, in the event that the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law (whether domestic or foreign), has wound up or liquidated, voluntarily or otherwise, or ceases to do business in the normal course.  The affected party shall promptly notify the other party in the event of the occurrence of any of the foregoing instances.  

9.4. Effect of Termination. Upon any termination or expiration of this Agreement: (a) Swell shall have the right to terminate access and use of the Services (and Customer will not have access to any Customer Content included therein); (b) each party will promptly permanently destroy and delete all Confidential Information of the other party in its possession or control, and upon request, provide the other party with a written certification, signed by one of its officers certifying the destruction of all such Confidential Information; provided, that such party may retain a copy of such Confidential Information solely for archival purposes and for purposes of enforcing its rights under this Agreement (and any such retained Confidential Information will be subject to the terms of this Agreement); (c) any and all payments due under this Agreement shall immediately become due and payable; and (d) Sections 3.7, 3.8, 3.11, 3.12, 4, 5, 7 8, 9.4, 7, 8, 9, 10 and 11 shall survive. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement, shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement, and shall be without prejudice to any other right or remedy that a party may have at law or in equity. Neither party shall be liable to the other party due to termination of this Agreement in accordance with the termination provisions hereof, whether for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either party.

10. Limitation of Liability

10.1. Limitation of Liability.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, SHALL SWELL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, (B) FOR ANY DAMAGES FOR LOST PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF SWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE.  Customer acknowledges that the limitations of liability contained in this Section 10 are a fundamental part of the basis of Swell’s bargain hereunder, and Swell would not enter into this Agreement absent such limitations.

10.2. Limitation of Liability.  NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, SWELL’S AGGREGATE LIABILITY UNDER ANY THEORY OF LIABILITY, INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES RECEIVED BY SWELL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH SWELL RECEIVES CUSTOMER’S NOTICE OF ANY CLAIM.  MULTIPLE CLAIMS SHALL NOT INCREASE SUCH AGGREGATE LIABILITY.

11. General

11.1. Relationship of Parties.  Both parties are, and shall remain at all times, independent contractors, and nothing in this Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties.  

11.2. Governing Law; Venue.  This Agreement is to be construed in accordance with and governed by the internal laws of the State of Utah without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Utah to the rights and duties of the parties.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the state and federal court located in the State of Utah, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding; provided, however, that either party may seek injunctive relief in any court of competent jurisdiction.

11.3. Assignment.  Neither party shall have the right to assign, delegate or otherwise transfer this Agreement or its rights and obligations, whether by agreement, operation of law or otherwise, without the express prior written consent of the other party, and any attempt to assign, delegate or otherwise transfer this Agreement or any of such party’s rights or obligations hereunder without such consent shall be void; provided, however, either party may assign this Agreement in its entirety without the prior written consent of the other party solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of such party’s assets, sale of stock, change of name or like event if the assigning party provides written notice to the other party promptly after the completion of such assignment and the assignee agrees in writing to be bound by this Agreement.  Any attempted assignment other than in accordance with this Section 11.3  shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.  

11.4. Identify Customer as a Customer of Swell.  Swell may identify Customer as its customer, and display Customer’s trademark(s), on Swell’s website and marketing materials. 

11.5. Waiver.  The waiver by either party of a breach of or a default under any provision of this Agreement shall be in writing to be effective and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

11.6. Severability.  Any determination that any provision of this Agreement or any application thereof is invalid, illegal or unenforceable in any respect in any instance shall not affect the validity, legality and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement.

11.7. Captions and Section Headings.  The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

11.8. Notices.  Any notice required to be given under this Agreement shall be in writing and delivered personally, by email transmission, by express overnight mail or by certified U.S. mail to the other designated party at the postal address or email address set forth after each party’s signature (or such other postal address or email address provided by each party in accordance with this Section) or the email provided by Customer in connection with Customer’s account.  Notices shall be deemed effective (a) on the date of delivery, if delivered personally; (b) on the date of email transmission, if sent by email and a response email or other confirmation by the recipient of the receipt of such email is received by the sending party; (c) one (1) business day after deposit, if sent by express overnight courier, with written confirmation of receipt; or (d) two (2) business days after posting, if sent by certified U.S. mail.

11.9. Force Majeure.  Neither party shall be liable to the other party for any delay or failure in performing under this Agreement resulting, directly or indirectly, from any cause beyond its reasonable control (“Force Majeure”), including without limitation, electrical power failures, strikes, labor disputes, acts of terrorism, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of nature, war, governmental actions, orders of domestic or foreign courts or tribunals, nonperformance of third parties, Internet or other network (including without limitation phone network or other telecommunications network) failures or “brownouts,” denial of service attacks, DNS spoofing attacks and/or hacking attacks of a similar nature, telecommunication carrier failures, or loss or fluctuations in heat, light or air conditioning.  The party affected by an event of Force Majeure will notify the other party of such Force Majeure and will take reasonable steps to resume performance.

11.10. Entire Agreement; Amendment. This Agreement contains the complete understanding between the parties with respect to their respective subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No changes, amendments, or alterations to this Agreement shall be effective unless signed by duly authorized representatives of both parties, except as expressly provided herein.

*** End of Terms and Conditions ***


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