Terms and Conditions

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”). If you are entering into this Agreement on behalf of your employer or any other entity or person, you represent that you are duly authorized to bind that employer, entity or person to this Agreement, and “Customer” as used in this Agreement refers to that employer, entity or person. Customers that have executed a separate Master Services Agreement with Swell are governed by that Master Services Agreement rather than this Agreement.

1. Definitions

1.1 “App” means Swell’s legacy mobile application, if and to the extent made available by Swell, as further described in Section 3.5. The App is not included in the Services.

1.2 “Authorized Users” means Customer’s employees, contractors and agents who are designated by Customer and issued login credentials to access and use the Customer Portal and other Services on behalf of Customer, and who have agreed to comply with the applicable terms and conditions of this Agreement. Authorized Users may not include competitors of Swell. Patients are not Authorized Users.

1.3 “Business Associate Agreement” or “BAA” means the business associate agreement entered into between Swell and Customer governing the use and disclosure of Protected Health Information in connection with the Services, as described in Section 3.13.

1.4 “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.

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

1.6 “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.

1.7 “Effective Date” means the date on which Customer executes or electronically accepts the Subscription Order Form.

1.8 “End User Terms” means the end user license agreement and any other terms and conditions which govern the access and use of the Services by Authorized Users.

1.9 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated thereunder, each as amended from time to time.

1.10 “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.

1.11 “Liability” means any claims, losses, penalties, fines, expenses (including reasonable attorneys’ fees and litigation costs), damages and other liability.

1.12 “License” means each subscription unit purchased by Customer under the Subscription Order Form, whether designated per practice location (a “Location License”) or per individual provider (a “Provider License”), which entitles Customer to use the applicable Services for that location or provider. The number of Licenses is the quantity stated in the Subscription Order Form, as adjusted for any additional Licenses added during the Term.

1.13 “Message” means each outbound SMS or MMS communication sent through the Services, including automated review invites and reminders, NPS and patient survey sends, custom campaign messages, and two-way messages sent by Customer or its Authorized Users. Each outbound SMS or MMS sent counts as one (1) Message, regardless of its length, number of segments or media content. A Message is counted when it is submitted to the carrier, regardless of whether it is ultimately delivered. Inbound messages received from Patients are not counted as Messages.

1.14 “Patients” means the patients and other individuals with whom Customer communicates, transmits information and files, and otherwise transacts through the use of the Services, including via SMS/MMS text messaging and email. Patients do not have access to the Customer Portal and are not Authorized Users.

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

1.16 “Protected Health Information” or “PHI” has the meaning given to such term under HIPAA, limited to the information created, received, maintained or transmitted by Swell on behalf of Customer in connection with the Services.

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

1.18 “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 may be amended from time to time by a written amendment of the then-applicable Subscription Order Form or by a new Subscription Order Form.

1.19 “Term” has the meaning set forth in Section 9.1.

1.20 “Term Start Date” means the date on which the Initial Term and billing for the subscription Services begin, as set forth in Section 9.1. The Term Start Date is separate from, and will typically follow, the Effective Date to allow for account setup, integration and registration.

1.21 “Third-Party Costs” has the meaning set forth in Section 4.7.

2. Changes to this Agreement

Swell may update this Agreement from time to time in its sole discretion. Swell will notify Customer of material changes at least thirty (30) days before they take effect by any reasonable means, including by email to the address associated with Customer’s account, by posting the revised Agreement on Swell’s website, or through the Services. The date of the most recent revision appears in the “Last Updated” legend at the top of this Agreement. Customer’s continued access to or use of the Services after the effective date of a change constitutes Customer’s acceptance of the then-current version of this Agreement. Notwithstanding the foregoing, no change to this Agreement will modify the fees, License quantities or term length set forth in an executed Subscription Order Form during its then-current term, except as permitted by Sections 4.5 and 4.7.

3. Services

3.1 License to Access and Use the Services. The Subscription Order Form executed by Customer describes the Services to be provided by Swell to Customer during the Term and the 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-sublicensable 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 Section 3.1; (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 available 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 non-exclusive, non-transferable (except as permitted under Section 11.3), royalty-free, fully paid-up right and license during the Term to: (a) use, reproduce and display the Customer Branding in connection with the provision of the Services and as permitted under Section 11.4; and (b) use, reproduce, format, transmit, process, store and receive Customer Content in connection with the provision of the Services, subject to Section 3.13 and the BAA with respect to PHI.

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 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 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 the End User Terms, as determined by Swell in its sole discretion. Swell may modify the End User Terms from time to time and provide notice of any modifications in any reasonable manner, including by posting modified End User Terms on the Services. The End User Terms shall not affect the obligations or liability of Customer to Swell under this Agreement, and shall not modify this Agreement (see Section 11.11).

3.5 Registration; Legacy Mobile App. Customer and its Authorized Users must register at the Customer Portal in order to access and use the Services, which are provided primarily through the Customer Portal. Swell may make available a legacy mobile App that is no longer actively updated or supported. Subject to this Agreement, Customer and its Authorized Users may use the App during the Term at Customer’s option, and the restrictions in Section 3.2 apply to the App. The App is provided “as is,” without warranty, support or service level commitments of any kind, and is excluded from Section 6.1. Swell may modify, limit or discontinue the App at any time without liability to Customer. If Customer or its Authorized Users download the App, the rules and policies of the applicable app store (including Google Play and the Apple App Store) may also apply.

3.6 Customer Portal. During the Term, 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 omissions by its Authorized Users.

3.7 Customer Content; 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 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 and after the Term, to distribute, disclose and otherwise exploit Aggregated Data for Swell’s business purposes, including disclosure within its public statements and marketing materials describing or promoting Swell or the Services. “Aggregated Data” 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. Any Aggregated Data derived from PHI shall be de-identified in accordance with 45 C.F.R. § 164.514 and used only as permitted by HIPAA and the BAA.

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, worldwide, royalty-free, fully paid-up, sublicensable, transferable right and license to use, make, have made, offer for sale, sell, license, import, copy, create derivative works of, distribute, perform, transmit, display and otherwise exploit such Feedback for any and all purposes whatsoever, without restriction.

3.9 Integrations with Third Parties. The Services may, from time to time, offer Customer the ability to access Customer’s accounts with third parties (“Third Party Accounts”), including practice management systems, through Customer’s account for the Services, which may include the ability 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; (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 continued access) to its Third Party Accounts via the Services. Swell does not provide, makes no warranties regarding, and will have no liability with respect to the products and services made available by third parties through Customer’s Third Party Accounts. Customer acknowledges and consents to Customer Content being transmitted to and from third parties, including to and from Customer’s Third Party Accounts, subject to the BAA with respect to PHI.

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. Service level commitments, if any, apply only when expressly included in the Subscription Order Form.

3.11 Customer Information and Registration. Customer represents and warrants that the information provided by Customer about itself, including its taxpayer or employer identification number, its Google Business Profile, and the correct customer location or business address for each text and/or email sent using the Services (“Customer Information”), is, and at all times will be, accurate, truthful and complete. Customer will promptly correct or update any Customer Information that does not meet the foregoing requirements. Customer agrees that Customer Information will be used by Swell and its vendors to register Customer’s phone number(s) as associated with Customer, and that if any Customer Information is inaccurate, untruthful or incomplete: (a) texts and/or emails sent by or on behalf of Customer through the Services may be marked as spam and not received by the intended Patients; and (b) Customer will pay or promptly reimburse Swell for any fees or penalties assessed by third-party vendors or regulatory bodies as a result.

3.12 Compliance with Applicable Law; CCPA; CPRA. In accessing and using the Services, Customer and its Authorized Users will comply with any and all applicable local, state and federal laws (“Applicable Law”), including without limitation: (a) the Telephone Consumer Protection Act (47 U.S.C. § 227) and the rules promulgated thereunder, and the Telemarketing Sales Rule; (b) the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (the “CAN-SPAM Act”); (c) state and federal do-not-call laws; (d) the California Consumer Privacy Act, as amended by the California Privacy Rights Act (together, the “CCPA”); and (e) export control laws and regulations of the United States and other jurisdictions. With respect to the CCPA: (i) the parties acknowledge and agree that Swell is a “service provider” as that term is defined therein; (ii) the parties shall safeguard and hold in confidence 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.

3.13 HIPAA; Business Associate Agreement. To the extent Customer is a “covered entity” or “business associate” under HIPAA and Customer Content includes PHI, the parties will enter into a BAA, which may be executed separately from, and by different authorized signatories than, the Subscription Order Form. Upon execution, the BAA is incorporated into this Agreement by reference. Each party will comply with the provisions of HIPAA applicable to it in connection with the Services. Customer will not transmit PHI to Swell through the Services until the BAA has been executed. Customer is responsible for (a) limiting the PHI it provides to Swell to the minimum necessary for Swell to provide the Services, and (b) the content of the message templates, campaigns and other communications Customer configures or sends through the Services, including ensuring that such communications do not include PHI beyond what is permitted by HIPAA for the applicable communication channel. In the event of any conflict between this Agreement and the BAA with respect to PHI, the BAA shall control.

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

3.15 Changes to the Services. Swell may, from time to time and in its sole discretion, improve, enhance, modify or expand the features and functionality of the Services. Improvements and enhancements to the Services Customer has purchased will be provided at no additional cost to Customer. Swell may also offer new products, modules or features for additional fees, which Customer may elect to purchase by amendment of the Subscription Order Form. Swell shall use commercially reasonable efforts to provide Customer with prior written notice of any material changes to the Services.

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 this Section 4. Except as expressly provided in this Agreement, all fees are non-refundable. If 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. Invoices not paid within twenty-eight (28) days after the due date will incur a monthly late fee equal to the greater of thirty dollars ($30.00) or two and one-half percent (2.5%) of the unpaid balance (or the maximum amount permitted by applicable law, whichever is lower). Collection fees will be added, to the extent allowed by applicable law, in the event unpaid fees are sent to third-party collections. 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 Invoicing. Unless otherwise stated in the Subscription Order Form, subscription fees will be invoiced monthly in advance, beginning on the Term Start Date, with due upon receipt payment terms. Fees for one-time setup or professional services will be invoiced upon execution of the Subscription Order Form and are payable in advance of receiving such services. All fees are to be paid in U.S. dollars.

4.3 Standard Patient Communications Plan; Message Overage. Unless otherwise stated in the Subscription Order Form, Customer’s subscription includes a pooled monthly allowance of Messages equal to six hundred (600) Messages multiplied by the number of active Licenses billed for that month (the “Monthly Message Allowance”). The Monthly Message Allowance is shared across all of Customer’s Licenses, and usage is measured in the aggregate across Customer’s account rather than per individual License. All Messages count toward the Monthly Message Allowance, including Messages sent through custom campaigns. Usage is calculated on a full calendar month basis, and unused Messages do not roll over to any subsequent month. Unless otherwise stated in the Subscription Order Form, Messages in excess of the Monthly Message Allowance will be billed at a rate of $0.06 per Message and added to Customer’s next invoice. Swell’s platform message reporting, which includes all Messages submitted to the carrier, shall govern billable Message counts. If Customer anticipates regularly exceeding the Monthly Message Allowance, Customer may, at its option, upgrade to a Custom Patient Communications Plan with a higher contracted allowance at a discounted bulk rate; otherwise, overages will continue to be billed per Message as set forth above. The overage rate is subject to adjustment under Section 4.7.

4.4 Additional Licenses. If Customer requires Licenses beyond the quantity stated in the Subscription Order Form, such additional Licenses will be billed at Swell’s then-current per-License rates for the applicable Services (or the rates stated in the Subscription Order Form, if any), beginning with the invoice following the month in which they are added. Additional Licenses will co-term with the then-current Term. Each additional License increases the Monthly Message Allowance in accordance with Section 4.3.

4.5 Price Increases. Unless otherwise stated in the Subscription Order Form, the prices applicable to the Services will automatically increase by five percent (5%) at the start of each Renewal Term. Swell reserves the right to increase prices by more than five percent (5%), or to make other changes to pricing, effective as of the start of any Renewal Term, provided that Swell gives Customer written notice, which may be given by email, at least sixty (60) days before the change takes effect. Price adjustments for Third-Party Costs are governed by Section 4.7.

4.6 Taxes. Customer will be responsible for 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.

4.7 Third-Party Cost Adjustments. Customer acknowledges that the fees for the Services, including Message overage rates, reflect costs charged to Swell by third parties, including telecommunications carriers, messaging and registration providers (including 10DLC/TCR registration), and integration partners such as practice management system vendors (collectively, “Third-Party Costs”). If any Third-Party Cost applicable to the Services is introduced or increased, Swell may, upon at least sixty (60) days’ prior written notice to Customer, increase the applicable fees or pass through such Third-Party Costs in an amount reasonably corresponding to the new or increased cost. Any adjustment under this Section 4.7 is separate from, and in addition to, any price increase under Section 4.5.

4.8 Payment Methods. Payments may be made via ACH, wire, credit card (where offered), or bank check to the address listed on the invoice. For payments made via wire transfer, Customer will be responsible for any bank fees associated with the wire transfer. Customer represents and warrants that Customer is the legal owner of, or is authorized to use, the payment method provided to Swell. If Customer provides banking or card details for automatic payment on invoice due dates, Customer authorizes Swell to charge the fees under this Agreement to such account. Customer will notify Swell of changes to payment account numbers or any other changes in payment method.

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 the App, 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 other party under this Agreement.

6. Warranties; Disclaimers

6.1 Warranty. Swell 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. If 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 of such termination.

6.2 No Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, SWELL MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY 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 MAKES NO WARRANTY THAT (A) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (C) ANY DEFECT OR MALFUNCTION IN THE SERVICES IS CORRECTABLE OR WILL BE CORRECTED, OR (D) ANY MESSAGE WILL BE DELIVERED BY A CARRIER. 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, the pricing set forth in the Subscription Order Form, and all personnel, customer, contract 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 information that (a) is already in the Receiving Party’s possession at the time of disclosure, (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. PHI is subject to the BAA in addition to this Section 7.

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; and (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 terms at least as protective as those 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 Compelled Disclosure. 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 permitted) notify the Disclosing Party of such compelled disclosure and shall reasonably cooperate with the Disclosing Party in protecting against any such disclosure or obtaining a protective order narrowing the scope of such disclosure or use of the Confidential Information.

8. Indemnification

8.1 Indemnification by Customer. Customer shall indemnify, defend and hold Swell and its successors and permitted assigns harmless from and against any Liability arising from: (a) a claim alleging that the Customer Content or Customer Branding, or any portion thereof, infringes, misappropriates or violates a third party’s Intellectual Property Rights, rights of publicity or privacy, or other rights, or that any Customer Content is defamatory or obscene; and (b) Customer’s breach of its obligations under Sections 3.11, 3.12, 3.13 or 3.14.

8.2 Indemnification by Swell. Swell shall defend Customer and its successors and permitted assigns against any third-party claim alleging that Customer’s use of the Services in accordance with this Agreement infringes or misappropriates such third party’s United States copyright, trademark or trade secret (a “Third-Party IP Claim”), and shall indemnify Customer for damages and costs finally awarded against Customer, or agreed to by Swell in settlement, with respect to such Third-Party IP Claim. If a Third-Party IP Claim occurs, or in Swell’s opinion is reasonably likely to occur, Swell may, at its option and expense: (a) procure the right for Customer to continue using the Services (or the affected portion); (b) modify or replace the Services (or the affected portion) so that they are non-infringing while providing substantially equivalent functionality; or (c) if neither of the foregoing is commercially reasonable, terminate Customer’s right to use the affected portion of the Services and refund, on a pro-rata basis, any prepaid fees for the unused portion of the Term for the affected Services. Swell shall have no obligation under this Section 8.2 to the extent a Third-Party IP Claim arises out of or relates to: (i) any combination or use of the Services with products, content, software or services not provided by Swell; (ii) Customer Branding or Customer Content; (iii) any modification of the Services not made by Swell; or (iv) any use of the Services not authorized under, or in breach of, this Agreement. This Section 8.2 states Customer’s sole and exclusive remedy, and Swell’s entire liability, with respect to any Third-Party IP Claim.

8.3 Indemnification Procedures. In seeking indemnification for third-party claims under this Section 8, the indemnified party will: (a) 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 8 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 on terms that require 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 its sole expense.

9. Term and Termination

9.1 Term. This Agreement is effective as of the Effective Date and continues until the expiration or termination of the Term. The period between the Effective Date and the Term Start Date is reserved for account setup, integration and registration. The Term Start Date is the date stated in the Subscription Order Form or, if no date is stated, the earlier of (a) the date the Services are made available for Customer’s use following setup, or (b) twenty-one (21) days after the Effective Date. The initial term of the subscription Services begins on the Term Start Date and continues for the period set forth in the Subscription Order Form or, if no period is stated, twelve (12) months (the “Initial Term”), unless earlier terminated in accordance with this Section 9. Thereafter, the Services will automatically renew for successive twelve (12) month renewal terms (each, a “Renewal Term”), unless otherwise stated in the Subscription Order Form or either party provides written notice of non-renewal at least thirty (30) days before the end of the then-current term. Unless the parties agree otherwise in writing, the same Services shall renew for any Renewal Term. The Initial Term and all Renewal Terms are collectively 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, for a payment breach) after receipt of written notice of such breach, the breaching party cures such breach. During the applicable 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), is 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 of the occurrence of any of the foregoing.

9.4 Effect of Termination. Upon any termination or expiration of this Agreement: (a) Swell shall have the right to terminate access to and use of the Services, and Customer will no longer have access to Customer Content through the Services, provided that PHI will be returned or destroyed as provided in the BAA; (b) each party will promptly and 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 such destruction; 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 remain subject to this Agreement); (c) all payments due under this Agreement shall immediately become due and payable; and (d) Sections 3.7, 3.8, 3.9(c), 3.11, 3.12, 3.13, 3.14, 4, 5, 6.2, 7, 8, 9.4, 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 release either party from any liability for breach of its 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 its terms, 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 Exclusion of Damages. 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 FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, OR (B) 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.

10.2 Liability Cap. 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 OR RELATING TO 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.

10.3 Basis of the Bargain. 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.

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 other jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the state or federal courts located in the State of Utah, and each party 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; provided, however, that 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 Publicity. Swell may identify Customer as a customer of Swell and display 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.

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, by express overnight courier or by certified U.S. mail. Notices to Customer will be sent to the postal or email address set forth in the Subscription Order Form or the email address associated with Customer’s account. Notices to Swell will be sent to SocialSwell, Inc., Attention: Contracts, 6510 S Millrock Dr, Suite 300, Holladay, UT 84121, or Legal@swellcx.com. Either party may update its notice address by notice given in accordance with this Section 11.8. 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 of receipt 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 (other than payment obligations) 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, pandemics, governmental actions, orders of domestic or foreign courts or tribunals, nonperformance of third parties, Internet or other network (including telephone or other telecommunications network) failures or “brownouts,” carrier filtering or blocking of messages, denial of service attacks, DNS spoofing attacks or hacking attacks of a similar nature, telecommunication carrier failures, or loss of or fluctuations in heat, light or air conditioning. The party affected by an event of Force Majeure will notify the other party and will take reasonable steps to resume performance.

11.10 Entire Agreement; Amendment. This Agreement, together with the Subscription Order Form and, when executed, the BAA, contains the complete understanding between the parties with respect to its subject matter and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to such subject matter. Except as provided in Section 2, no changes, amendments or alterations to this Agreement shall be effective unless in writing and signed or electronically accepted by duly authorized representatives of both parties.

11.11 Order of Precedence. In the event of any conflict or inconsistency among the documents comprising this Agreement, the following order of precedence shall apply: (a) the BAA, solely with respect to the use, disclosure and safeguarding of PHI; (b) any written amendment or addendum signed by both parties that expressly states it modifies this Agreement, solely with respect to the terms it modifies; (c) the Subscription Order Form, solely with respect to the Services purchased, License quantities, fees, Message allowances, overage rates, Term Start Date and term length; (d) this Agreement; and (e) the End User Terms. No terms contained in any Customer purchase order, vendor registration form, or other Customer-provided document, and no click-through or online terms accepted by Authorized Users, shall modify or supplement this Agreement.

11.12 Electronic Acceptance; Counterparts. The Subscription Order Form may be executed or accepted electronically, including by electronic signature or online acceptance, and in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one agreement.

End of Terms and Conditions