Terms of Service

Swell Commerce Corp. (the “Company” or “Swell”) licenses its cloud-based platform and provides related services pursuant to these terms of service (these “Terms of Service” or “Terms"). These Terms govern the Agreement between you (if you use Company Software and Services in your capacity as an individual) or the legal entity you represent (e.g., your employer) (in either case, “You”) and the Company with respect to Swell Services. Read these Terms of Service and any other relevant documents comprising the Agreement carefully. You must read, agree with and accept all of the terms and conditions contained or expressly referenced in these Terms of Service, including Swell's Privacy Policy, and, if applicable, the Swell Data Processing Addendum ("DPA") before you may sign up for a Swell account or use any Swell Service. If You do not agree to the terms of this Agreement, do not click “I agree” in Swell’s merchant registration flow, sign an Enterprise Agreement, or use any of the Company Software.

1. DEFINITIONS

• “Agreement” means the legal contract agreed between the Company and You with respect to Your use of the Swell Services, which includes in each case these Terms, Swell’s Privacy Policy and, where and as applicable, the DPA and may or may not include an Enterprise Agreement (as described below). These Terms will apply unless and except to the extent expressly otherwise provided in an Enterprise Agreement.
• “Application” means any software application that You develop to be used with the Company Software pursuant to the Agreement. An Application consists of a client-side portion that resides on the end user's computer or mobile device and server-side portion that will reside on Company's cloud-based servers.
• “Brand Features and Marks” means Your branding, trademarks and the associated logos that are used in connection with an Application.
• “Company Software” means the Company's cloud-based platform (including software libraries and APIs that may be integrated into an Application), known commercially as Swell, which provides a platform for developing and operating an ecommerce business.
• “Content” means Your content, images and information accessible on or from an Application.
• “Services” means the services that Company provides to its customers in connection with the Company Software, which include, without limitation, the hosting of the server-side portion of an Application on Company's cloud-based servers and Professional Services.
• “Professional Services” means such Services related to training, implementation, installation, operation and customization of any Application, as well as the Application's integration with the Company Software or other of your systems and processes, as are set forth in an Enterprise Agreement.
• An “Enterprise Agreement” is, if any, a separate written agreement described as an Enterprise Merchant Services Agreement, Professional Services Agreement, or similar, executed between You and the Company referring to and incorporating these Terms of Service. For the avoidance of doubt, use of the Swell Services on a Community or Standard plan is subject to these Terms but not an Enterprise Agreement.
• “Platform Revenue” means the aggregate gross revenues received by or payable by You in connection with all user transactions processed using the Company Software.
• “Launch Date” means the first to occur of the date on which live processing of transactions through the Company Software and Services or the date that is six months from the Effective Date.
• “Effective Date” means the date on which this Agreement takes effect.

2. LICENSE

Subject to Your compliance with the terms and conditions of set forth herein, Company hereby grants You, solely during the term of the Agreement, a non-exclusive, non-transferable, revocable license, without rights to sublicense, to incorporate libraries and APIs that are included in the Company Software into Your Applications, to reproduce and distribute such libraries and APIs together with Your Applications and to access, use, perform and display the Company Software via the Internet, solely for use with Your Applications.

3. OWNERSHIP AND CONTENT

3.1

As between the parties and except for the licenses granted by these Terms, (a) You retain all right, title and interest, including all related intellectual property rights, in and to the Applications, the Content and the Brand Features and Marks and (b) Company retains all right, title, and interest, including all related intellectual property rights, in and to the Company Software.

3.2

You hereby grant Company an irrevocable, non-exclusive, royalty-free, transferable license, with rights to sublicense, to use, reproduce, modify, display, perform and create derivative works of the Applications, the Content and the Brand Features and Marks for the sole purpose of allowing the Company to provide the Company Software and the Services to You.

3.3

Company reserves the right to monitor the Content and Applications and to remove or disable Content or Applications that Company, in its sole discretion, determines to be illegal, harmful, offensive, creating liability for Company or its service providers, or otherwise in violation of these Terms or Company operating policies.

3.4

Company retains all rights not expressly granted to you under these Terms. You do not have any implied rights.

4. OTHER COVENANTS, TERMS AND RESTRICTIONS

4.1

You shall retain and not remove or obscure all copyright, trademark and other intellectual property rights notices contained on or in the Company Software.

4.2

You represent and warrant to Company that: (i) You have all legal power, authority and authorization consent necessary to enter into and perform Your obligations under the Agreement; (ii) all information provided by You to Company, including, without limitation, your legal name, address and telephone number used in Your registration, is truthful, accurate and complete; (iii) You shall comply with all terms and conditions of the Agreement; (iv) You own or otherwise control and have sufficient rights and consents to provide all Applications, Brand Features and Marks or Content for use by Company in the manner contemplated by the Agreement; and (v) none of the Applications, Brand Features and Marks or Content does or shall infringe, misappropriate or violate any rights of any third parties.

4.3

You agree to comply with the Company's Privacy Policy located at https://www.swell.is/privacy and Acceptable Use Policy below, each of which is incorporated herein by reference.

5. PAYMENT AND TAXES

5.1

Company charges fees for access to the Company Software and the Services. You agree to pay all fees charged by Company for such access throughout the entire term of the Agreement, each of which will be described in an Enterprise Agreement, or, if none, in a pricing schedule posted at https://www.swell.is/pricing (which may vary from time to time in Company’s sole discretion). All fees are non-refundable and, unless otherwise stated, in US dollars. All fees and taxes and other charges will be billed monthly, and You hereby authorize Company to charge your credit card automatically, as billed. There will be no refunds or credits issued or due for partial months of service, upgrades, or unused months.

5.2

You agree to promptly make alternative arrangements to pay Company in the event of any refusal of your credit card issuer to pay any amount to Company for any reason. You agree to pay all costs of collection, including attorneys' fees and costs, on any outstanding balance. In the event you fail to pay any amount when due, Company may immediately suspend or terminate Your access to the Company Software and the Services.

5.3

Except as otherwise provided in an Enterprise Agreement, Your subscription will renew automatically, unless Company terminates it or you terminate your subscription pursuant to Section 7 below. You must cancel your subscription before it renews in order to avoid billing of subscription fees for the renewal term to your credit card.

5.4

You are responsible for, and will indemnify and hold Company harmless from, payment of all taxes (other than taxes based on Company' net income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Company under these Terms or the delivery, license or use of the Company Software or Services. You will make all payments to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be Your sole responsibility, and You agree to provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.

5.5

Any amounts not paid when due are subject to an interest charge at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.

6. SERVICE-RELATED TERMS

Swell shall provide the Professional Services (a) in accordance with the terms and subject to the conditions set forth in an Enterprise Agreement and these Terms; (b) using personnel of required skill, experience, licenses, and qualifications; and (c) in a timely, workmanlike, and professional manner. Nothing in this Agreement shall prevent You from performing for itself or acquiring from third parties the same or similar Professional Services, nor prevent Swell from providing the same or similar Professional Services to other customers (subject to confidentiality and intellectual property obligations set forth below). Swell may subcontract the Professional Services. Any changes to the scope of Professional Services must be agreed by the parties in a written amendment.

You shall (a) provide Swell with access to Your premises, office accommodation, and other facilities as may reasonably be required by Swell for the purposes of performing the Professional Services, including admin access to Your online store built on the Swell platform; (b) respond promptly to any Swell request for information or approvals that Swell requires to perform the Professional Services.

In consideration of the provision of the Professional Services by Swell and the rights granted to You under the Enterprise Agreement and these Terms, You shall pay the fees as described in the Enterprise Agreement. Further, You shall reimburse Swell for all reasonable travel and out-of-pocket expenses incurred by Swell in performing the Professional Services.

Subject to the following paragraph, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to You in the course of performing the Professional Services (collectively, the “Deliverables”) shall be owned exclusively by You. Swell agrees and will cause its Swell personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for You. To the extent that any of the Deliverables do not constitute a “work made for hire,” Swell hereby irrevocably assigns and shall cause its personnel to irrevocably assign to You all Intellectual Property Rights worldwide in the Deliverables.

All Intellectual Property Rights in all documents, data, know-how, methodologies, software, and other materials provided by or used by Swell in performing the Professional Services and developed or acquired by Swell prior to or independently of its provision of Professional Services for You (collectively, “Pre-Existing Materials”) shall be owned exclusively by Swell and its licensors. Swell hereby grants You a limited, revocable, non-transferable, non-sublicensable, worldwide, non-exclusive license to use, display, reproduce, any Pre-Existing Materials to the extent incorporated in or otherwise necessary for the use of the Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Swell.

Except as set forth in an Enterprise Agreement, Company does not warrant or guarantee that the Applications, Company Software or the Services will be always available or available at any particular time, secure or free from errors or defects.

7. TERM AND TERMINATION

The Agreement begins upon the first to occur of (i) Your clicking “I agree” in Swell’s merchant registration flow, (ii) the Effective Date of an Enterprise Agreement, or (iii) Your use any of the Company Software. Unless a fixed term is stated in Your Enterprise Agreement, either party may terminate the Agreement at any time for any reason or no reason whatsoever; provided that to terminate the Agreement, You must use the online Company Software account cancellation forms. Without limiting the foregoing, You acknowledge that Company may discontinue all or part of the Company Software or Service at any time.

The Agreement may be terminated with immediate effect by either Party on giving written notice to the other party if the other party (a) is in material breach of this Agreement and such breach is not capable of remedy or, if capable of remedy, it has failed to remedy the breach within thirty (30) days of service of a notice requiring remediation; or (b) ceases or threatens to cease carrying on its business including if the other party becomes or is suspected of becoming insolvent, files or has filed against the other party a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of its assets.

In the event of termination or expiration of the Agreement, all of the licenses granted to You hereunder will terminate. The definitions and rights, duties and obligations of the parties that by their nature continue and survive shall survive any termination or expiration of the Agreement.

8. GOVERNMENT RESTRICTIONS

You may not export or re-export any of the Company Software or Application except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The foregoing and all accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the foregoing by the U.S. government is governed solely by the terms of the Agreement.

9. NO WARRANTY

THE COMPANY SOFTWARE AND SERVICES ARE PROVIDED TO YOU AS IS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY HEREBY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND SATISFACTORY QUALITY Company does not warrant that any of the Company Software or Services will meet your needs or requirements or be error-free or always available or available at any particular time or that any errors or defects will be corrected. Company does not warrant or guarantee any amount of money that You will receive or earn in connection with an Application.

NONE OF THE COMPANY SOFTWARE AND SERVICES IS FAULT TOLERANT. THEY ARE NOT DESIGNED, MANUFACTURED, LICENSED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, WEAPONS SYSTEMS OR ANY OTHER APPLICATION IN WHICH ITS FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR PHYSICAL OR ENVIRONMENTAL DAMAGE.

10. LIMITATION OF LIABILITY AND INDEMNITY

10.1

IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE.

10.2

OMPANY'S LIABILITY UNDER THE AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID BY YOU TO COMPANY UNDER THE AGREEMENT DURING THE 12 MONTHS PRIOR TO YOUR MAKING ANY CLAIM AGAINST THE COMPANY. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.3

You shall indemnify and hold harmless Company and its officers, directors, employees and agents (the "Company Indemnified Parties") from and against liabilities, costs, losses, damages, judgments, expenses (including attorneys' fees and costs of experts and costs of appeals) arising out of or in connection with any and all of the following: (a) any allegation that any of the Applications, Brand Features and Marks or Content infringe, misappropriate or violate any intellectual property right, (b) any violation of the Agreement, including, without limitation, any breach of any representations or warranties contained herein, (c) your provision or distribution of the Application or any Content, (d) your use of any of the Company Software or receipt of the Services, (e) any activity relating to your account, (f) any violation of a third party app store's contracts, policies or procedures; or (e) any failure of You to have all necessary rights and licenses.

11. CONFIDENTIALITY AND FEEDBACK

11.1

You agree to keep confidential and not use other than in the performance of the Agreement or disclose to a third party any information of Company that You know or reasonably should know is confidential to Company.

11.2

To the extent you provide Company with any suggestions, information, ideas, or feedback concerning any of the Company Software or Services, including but not limited to, a report of any errors which you discover while using an Application or the Company Software or any related documentation ("Feedback"), such Feedback will be the property of Company. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Company and agree to assist Company in perfecting and enforcing these rights.

12. ASSIGNMENT

You may not transfer or assign Your rights under the Agreement, in whole or in part, without the prior written consent of Company. Any attempted assignment in violation of the foregoing is void. Company may freely transfer or assign its rights under the Agreement. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

13. COPYRIGHT POLICY

13.1

Company takes claims of copyright infringement seriously. Company will respond to notices of alleged copyright infringement that comply with applicable law. If You believe any materials accessible on or from Company Software or the Services infringe Your copyright, You may request removal of those materials (or access thereto) from Company Software and the Services by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:

1. Your physical or electronic signature.
2. Identification of the copyrighted work You believe to have been infringed or, if the claim involves multiple works on Company Software or the Services, a representative list of such works.
3. Identification of the material You believe to be infringing in a sufficiently precise manner to allow Company to locate that material.
4. Adequate information by which Company can contact You (including Your name, postal address, telephone number and, if available, e-mail address).
5. A statement that You have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
6. A statement that the information in the written notice is accurate.
7. A statement, under penalty of perjury, that You are authorized to act on behalf of the copyright owner.

13.2

If You fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, Your DMCA Notice may not be effective.

13.3

Please be aware that if You knowingly materially misrepresent that material or activity on Company Software or the Services is infringing Your copyright, You may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

13.4

It is Company's policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

14. GENERAL

The laws of the State of California govern all matters arising out of the Agreement, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. The federal and state courts located in San Francisco County, California USA will have non-exclusive jurisdiction in respect of disputes arising in connection with the Agreement. The Agreement is the entire agreement between us with respect to the subject matter hereof, and supersedes the terms of any purchase orders and any other communications or advertising with respect to such subject matter. If any provision of the Agreement is held invalid, that provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of the Agreement will continue in full force and effect. Company has no liability for any failure of performance or equipment due to causes beyond its reasonable control, including, but not limited to, the following: acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars or acts of terrorism; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet or any telecommunications, hosting or service provider. Except as may be and to the extent otherwise provided in an Enterprise Agreement, the Agreement may be modified by the Company at any time, and any such modification shall apply immediately from and after the effective date thereof. No term or provision hereof will be considered waived by Company, and no breach excused, unless the waiver or consent is in writing signed by Company. No consent by Company to, or waiver of, a breach, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different or subsequent breach. The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such section.

15. CONTACT INFORMATION

If you have any questions about these Terms, or if you want to contact Company for any reason, please direct all correspondence to: [email protected].

Acceptable Use Policy

THIS ACCEPTABLE USE POLICY ("AUP") FORMS AN INTEGRAL PART OF THE SWELL TERMS OF SERVICE BETWEEN YOU AND SWELL (THE "COMPANY") THAT GOVERN YOUR USE OF COMPANY SOFTWARE AND THE SERVICES. CAPITALIZED TERMS USED BUT NOT DEFINED BELOW, SHALL HAVE THE MEANING SET FORTH IN THE SWELL TERMS OF SERVICE. IF YOU DO NOT AGREE TO THIS AUP, DO NOT USE ANY OF COMPANY SOFTWARE OR THE SERVICES.

Abuse

You may not use Company Software or the Services to engage in, foster, or promote the following behavior:

or:

• Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
• Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
• Interference with service to any user of Company Software or the Services, including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
• Use of an Internet account or computer without the owner's authorization;
• Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
• Collecting or using information without the consent of the owner of the information;
• Use of Company Software or the Services to distribute software that covertly gathers information about a user or covertly transmits information about the user;
• Use of Company Software or the Services for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; or
• Any conduct that is likely to result in retaliation against the Company, or the Company’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).

Vulnerability Testing

You may not attempt to probe, scan, penetrate or test the vulnerability of Company Software or the Services or to breach the Company's security or authentication measures, whether by passive or intrusive techniques, without the Company's express written consent.

Offensive Content

You may not publish or transmit via Company Software or the Services any content or links to any content that:

• Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
• is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
• is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
• is defamatory or violates a person's privacy;
• creates an imminent risk to a person's safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
• knowingly improperly exposes trade secrets or other confidential or proprietary information of another person;
• is intended to assist others in defeating technical copyright protections;
• knowingly infringes on another person's copyright, trade or service mark, patent or other property right;
• is intended to promote illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
• is otherwise known to be illegal or solicits conduct that is known to be illegal under laws applicable to you or to the Company; or
• is otherwise malicious, fraudulent or likely to result in retaliation against the Company by offended viewers.

Copyrighted Material

You may not use Company Software or the Services to download, publish, distribute, or otherwise copy in any manner any text, music, software, art, image or other work protected by copyright law unless:

• you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
• you are otherwise permitted by established United States copyright law to copy the work in that manner; or
• you come within the DMCA "safe harbor" under United States copyright law It is the Company's policy to terminate in appropriate circumstances the services of customers who are repeat infringers.