Terms of Service

Last Updated: November 01, 2024

TERMS OF SERVICE.

THESE TERMS OF SERVICE (“Terms of Service”) apply to Swans Group LLC (the “Service Provider”) and its Clients who enter into a Service Agreement with Service Provider whereby Service Provider provides services to the Client (the “Services”). Service Provider and the Client are also referred to herein each as a “Party” and, collectively, as the “Parties.” These Terms of Service are material to any Service Agreement executed among the Parties and are hereby incorporated therein; provided however, that in the absence of any Service Agreement executed by the Parties, these Terms of Service shall govern the rights and obligations of the Parties, relating to or arising out of any Services provided to the Client by Service Provider.

These Terms of Service are subject to change from time-to-time, without notice, in Service Provider’s sole discretion. Client accepts these Terms of Service, as amended from time-to-time, by using the Services, even without an agreement signed by the Parties.

Terms not otherwise defined herein shall have the meaning set forth in any Service Agreement.

ACCEPTANCE OF TERMS.

BY ENTERING INTO A SERVICE AGREEMENT WITH SERVICE PROVIDER OR BY USING THE SERVICES, THE CLIENT ACKNOWLEDGES THAT THEY HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. THE CLIENT FURTHER ACKNOWLEDGES THAT THEY HAVE THE AUTHORITY TO ENTER INTO AGREEMENTS ON BEHALF OF THE ENTITY THEY REPRESENT AND BIND SUCH ENTITY TO THESE TERMS OF SERVICE.

These Terms of Service, together with the applicable Service Agreement and any documents expressly incorporated by reference herein, constitute the entire agreement between the Parties regarding the subject matter hereof and supersede all previous representations, understandings, or agreements, oral or written, between the Parties.

SCOPE OF SERVICES.

The specific Services to be provided by Service Provider to Client shall be as set forth in the applicable Service Agreement. Service Provider shall provide the Services in accordance with these Terms of Service and the specific terms set forth in the Service Agreement. In the event of any conflict between these Terms of Service and the Service Agreement, the terms of the Service Agreement shall control, but only with respect to the specific Services described therein.

TERM AND TERMINATION.

Term of Service Agreement. Unless otherwise explicitly set forth in the Service Agreement, the term of the Parties’ Service Agreement will be one (1) year from the execution thereof (the “Original Term”) and will automatically continue for successive one (1) year periods (each a “Renewal Term”) until terminated in accordance with the Termination provisions below. The Original Term and any Renewal Terms will collectively be referred to as the “Term.”

Renewal Terms and Price Adjustments. Service Agreements that are automatically renewed for any Renewal Terms may be subject to periodic price increases in Service Provider’s sole determination. Service Provider will provide notice of any price increases at least thirty (30) days prior to the start of the applicable Renewal Term.

No Early Termination. The Service Agreement may not be terminated during the Original Term except as specifically provided in the Termination for Cause provision and Service Guarantees section below.

Termination for Cause. Either Party may terminate the Service Agreement for cause in the event of a continuing, material breach by the other Party (“Cause”). The non-breaching Party must provide ten (10) days of advanced, written notice to the breaching Party that sets forth, in detail, the facts and nature of the material breach. The breaching Party shall have thirty (30) days to fully cure the breach, or if such breach cannot reasonably be cured within such period, to commence remedial actions that will cure the breach as promptly as practicable. If the material breach remains uncured after the ten (10) day period, or if such remedial actions have not started or are unreasonable in the non-breaching Party’s objective determination, then the non-breaching Party may terminate the Service Agreement immediately upon written notice.

Termination After Original Term. After the completion of the Original Term, either Party may terminate the Service Agreement (a) for Cause, as described in the Termination for Cause provision above; or (b) for Convenience, by providing at least sixty (60) days written notice prior to the end of the then-current Term.

Effect of Termination by Service Provider for Cause or by Client for Convenience. If Service Provider terminates the Service Agreement for Cause or if Client terminates for Convenience, Client will be obligated to pay Service Provider, in full, for all Services agreed to under the Service Agreement for the entire Term, regardless of whether such Services were rendered or delivered prior to the termination date.

Effect of Termination by Client for Cause or by Service Provider for Convenience. If Client terminates the Service Agreement for Cause, or Service Provider terminates for Convenience, then Client shall only be obligated to pay Service Provider for all Services rendered up to the termination date, including any recurring fees prorated to the effective date of termination.

Liquidated Damages. The Parties hereby agree that Client’s payment obligations under the “Effect of Termination by Service Provider for Cause or by Client for Convenience” provision represent specified liquidated damages that are fair and reasonable estimates of the losses that would be incurred by Service Provider, and are not a penalty.

Suspension of Services for Payment Default. If Client is more than fifteen (15) days past due on any payment obligation: (a) Service Provider may immediately suspend all Services; (b) all warranties and service levels shall be suspended; and (c) Service Provider shall have no liability for any consequences of such suspension.

Continuation of Fees During Suspension. During any suspension period, all fees shall continue to accrue and be payable in accordance with the Service Agreement.

Service Provider Notice Requirements. Service Provider shall provide written notice of any intended termination to the email as provided by Client and on-file with Service Provider.

Client Notice Requirements. The Client shall provide written notice to Service Provider via written email to support@swans.co.

SERVICE GUARANTEES.

Available Guarantees. Service Provider offers the following guarantees to Client during the Original Term, subject to the requirements, limitations, and conditions set forth herein:

90-Day Commitment-Free 3-Step Guarantee. After completing three (3) months of the Original Term, Client may be eligible to terminate the Agreement without future payment obligations for the remainder of the Original Term, provided that Client completes all of the following requirements (“90-Day Requirements”):

(a) Submit a detailed written statement (minimum 150 words) describing Client’s initial expectations when contracting Service Provider’s services, including specific objectives and anticipated implementation methods;

(b) Submit a comprehensive assessment (minimum 150 words) documenting: (i) Services provided to date; (ii) Benefits realized from the implementation so far; and (iii) Planned services and developments for the remainder of the Term; and

(c) Submit a detailed explanation (minimum 150 words) of Client’s motivation for termination, including specific reasons why the Services are not suitable for Client’s needs.

Exercise of Guarantees. To exercise any guarantee: (a) All requirements must be completed within the applicable timeframe; (b) All submissions must be in writing and in the format specified by Service Provider; (c) Service Provider shall have five (5) business days to review submissions and either approve or request additional information; (d) Client must cooperate with any requests for additional information or clarification; and (e) Guarantee benefits shall become effective only upon Service Provider’s written confirmation that all requirements have been satisfactorily completed.

Limitations and Conditions. The following limitations apply to any guarantees: (a) Guarantees are only available during the Original Term and do not apply to any Renewal Terms; (b) Guarantees cannot be combined and Client may only exercise one guarantee, if eligible; (c) Guarantees do not apply to Additional Services or third-party costs incurred; (d) All guarantee requirements must be completed within their respective timeframes; (e) Parties’ obligations regarding confidentiality and intellectual property survive any termination under these guarantees; and (f) Service Provider’s standard fees apply to any additional services requested during the guarantee periods.

SERVICE FEES; PAYMENTS AND BILLING.

Payment Terms. Payments from the Client to Service Provider for Services rendered (the “Service Fee”) will be made on the first day of each billing period, unless otherwise approved in writing by Service Provider. Client must provide its credit card information or wiring instructions to an account with sufficient funds in the case of ACH payments, to be kept on-file with Service Provider for payment of all Service Fees, Additional Service Fees (as defined below), and any other fees and expenses owed to Service Provider. Service Provider will not be held liable for any payment declines and/or losses resulting from the misuse or decline of any payment or billing information. All fees will be paid in United States dollars.

Late Payment Fee. Client will be responsible for a late fee in an amount equal to five percent (5%) of the Service Fee, plus five percent (5%) of the Additional Service Fee, if any, that shall be compounded for every month that such fees are continually outstanding.

Additional Services. All requests for services not included in the Service Agreement (“Additional Services”) must be agreed to in writing before Service Provider commences such Additional Services. The written agreement for Additional Services will set forth a detailed description of the requested Additional Services, a timeline of expected completion, and an estimate of the anticipated fees associated with the Additional Services. Client will owe an additional fee for the Additional Services (the “Additional Service Fee”). The Additional Services will be considered complete when delivered to the Client and not based on any subjective feedback of the Client. All Additional Service Fees must be paid to Service Provider within one week of completion and invoicing the Client, whereby Service Provider shall be authorized to charge Client’s payment method on file one week following the date of the invoice for the Additional Services.

Platform and Software Costs. Service Provider will only incur expenses on behalf of the Client that are related to the Services and approved beforehand by the Client. Such expenses may include, but are not limited to, costs for case management systems, customer relationship management (CRM) platforms, automation tools, workflow management systems, document management systems, and other operational software licenses or subscriptions necessary for the Services. Client will reimburse the Service Provider for all approved expenses as set forth in the respective invoices.

Third-Party Software and Services. Client will pay directly for any third-party software licenses, subscriptions, or services required for the Services, unless the Parties mutually agree that Service Provider will manage such subscriptions on Client’s behalf and be reimbursed by the Client. For any third-party platforms managed by Service Provider on Client’s behalf, Service Provider shall provide regular reporting of usage and associated costs.

Taxes. All fees and charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Service Provider’s income.

Billing Disputes. If Client disputes any portion of an invoice, Client must notify Service Provider in writing within three (3) business days of receipt of the invoice and pay the undisputed portion of the invoice according to the payment terms herein. The Parties will work in good faith to resolve any billing disputes promptly.

No Rebates or Adjustments. This Agreement is not subject to any rebates or discounts, unless agreed to by Service Provider in its sole discretion.

Material Breach for Payment Default. Client shall be in material breach of any Service Agreement if Client is more than fifteen (15) days past due on payments to Service Provider.

Currency and Payment Processing. All monetary amounts referenced in this Agreement shall be in United States Dollars (USD). In the event of international payments, the Client shall bear all currency conversion fees and ensure that the full amount invoiced is received by Service Provider. Service Provider may use third-party payment processors to facilitate payment collection, and Client agrees to their terms of service when making payments through such processors.

Authorization for Automatic Payments. By providing payment information, Client authorizes Service Provider to automatically charge the payment method on file for all fees and expenses when due. Client agrees to maintain current, complete, and accurate payment and contact information with Service Provider at all times.

Platform Access and License Fees. Service Provider may require access to Client’s existing software platforms or require Client to obtain new software licenses or subscriptions necessary for the Services. Any such requirements will be agreed by the Parties in writing or verbally, and Client shall be responsible for maintaining and paying for all required licenses and subscriptions throughout the Term.

COMMUNICATIONS OPT-IN.

Consent to Communications. By providing a phone number, Client authorizes Service Provider and its affiliates to deliver: (a) Service and operational notifications; (b) Training and onboarding communications; and (c) Marketing and informational messages about Service Provider’s products and services.

Method of Communications. These communications may be delivered through: (a) Text messages (SMS/MMS); (b) Automated telephone dialing systems; (c) Pre-recorded or artificial voice messages; and (d) Other automated messaging systems, even if Client’s phone number is listed on any Do Not Call registry.

Operational Messages. Client acknowledges that certain messages, including but not limited to system alerts, security notifications, and service updates, are essential to the Services and cannot be opted out of while receiving the Services.

Marketing Messages. For marketing and promotional messages, Client: (a) May opt out at any time by replying “STOP” to any message; (b) Will receive a confirmation message after opting out; and (c) May opt back in by replying “START” to any message.

Frequency and Charges. Standard messaging and data rates may apply to all communications. The frequency of messages will vary based on service requirements and marketing preferences.

Consent Not Required. Client understands that consent to receive marketing communications is not a condition of purchasing any goods, services, or property from Service Provider.

Privacy Policy. All communications will be subject to Service Provider’s Privacy Policy, which is incorporated by reference into these Terms of Service.

Changes to Contact Information. Client agrees to promptly notify Service Provider of any changes to contact information to ensure accurate delivery of essential service communications.

OWNERSHIP, TRANSFER OF ASSETS, AND ACCESS RIGHTS.

Ownership of Developed Assets. Service Provider will own all assets developed or deployed during the Term (including both Original Term and any Renewal Terms), including but not limited to, automated workflows, custom integrations, scripts, customizations, configurations, templates, and other technical solutions (collectively, the “Assets”). Any pre-existing assets owned by the Client prior to this Agreement shall remain the property of the Client. Assets developed or enhanced during any Renewal Term shall be subject to the same ownership provisions as those developed during the Original Term.

Transfer of Assets and Documentation. Upon completion of the Term (whether Original Term or any Renewal Term) and full payment of all fees due under the Service Agreement, Service Provider will transfer ownership of the Assets to Client. The scope and format of such transfer will be determined by Service Provider based on the nature of the Assets, and may include items such as: (a) Documentation of configurations and integrations, (b) Relevant source code and scripts where applicable, (c) Technical documentation of automated workflows, (d) Administrator credentials, (e) Training materials or operating procedures. The specific items included in the transfer will depend on the actual Assets developed and documentation created during the course of providing the Services.

Administrative Access. After the transfer of ownership and if all amounts due under the Service Agreement have been paid by the Client, Service Provider will grant administrative rights to the Client for all relevant systems and platforms developed or configured by Service Provider. Client will be charged at Service Provider’s then-current hourly rates for any development or configuration time required to address issues arising from changes made to the Assets by Client after receiving administrative access.

Maintenance of Service Provider Access. The Client shall not remove Service Provider’s access to the Assets for the duration of the Service Agreement. Removal of such access constitutes a material breach of this Service Agreement. Service Provider requires this access to: (a) Maintain and support the implemented systems, (b) Monitor automated workflows and integrations, (c) Troubleshoot technical issues, (d) Implement updates and improvements, (e) Ensure system stability and performance.

Third-Party Platform Access. For any third-party platforms or software used in connection with the Services: (a) Client shall maintain necessary licenses and subscriptions, (b) Client shall ensure Service Provider has appropriate access levels, (c) Client shall not modify Service Provider’s access without prior written agreement, (d) Service Provider shall maintain documentation of all access credentials, (e) Both parties shall follow security best practices for access management.

Intellectual Property in Automated Systems. Any intellectual property developed by Service Provider in the course of providing the Services, including but not limited to: (a) Custom automation scripts and workflows, (b) Integration methods and configurations, (c) Custom developed code and algorithms, (d) System architecture designs, (e) Configuration templates and patterns, shall remain the property of Service Provider until transferred according to the terms of this Agreement.

Client Data and Content. Notwithstanding Service Provider’s ownership of the Assets, any Client data, content, or information processed or stored by the Assets shall remain the exclusive property of the Client. Upon termination or transfer, Service Provider shall ensure the proper transfer of all Client data in an industry-standard format.

Ongoing Development. Any modifications, improvements, or new Assets developed during any Renewal Term shall be subject to the same ownership and transfer provisions outlined in this section. Service Provider maintains ownership of all such developments until transfer of ownership occurs according to the terms of this Agreement.

Business Coaching and Related Materials. During the Term, Service Provider may provide business coaching services and related materials to the Client, including but not limited to business processes, worksheets, templates, methodologies, frameworks, training materials, and other documentation developed by Service Provider for business coaching purposes (collectively, “Coaching Materials”). All Coaching Materials shall remain the exclusive property of Service Provider at all times. Unlike technical Assets developed during the Term, ownership of Coaching Materials will not transfer to Client at any time. Client is granted a limited, non-exclusive license to use the Coaching Materials for its internal business purposes during the Term, but shall not copy, modify, distribute, sell, or transfer any Coaching Materials without Service Provider’s prior written consent. This provision shall survive the termination or expiration of this Agreement.

WARRANTY.

General Warranty. Service Provider warrants that all Services and Assets shall be performed and developed in a professional and workmanlike manner consistent with industry standards. The Service Provider shall repair or correct any defects in workmanship appearing within thirty (30) days from the date of Substantial Completion of any individual element of the Services (“Warranty Period”).

Substantial Completion. “Substantial Completion” for any individual element of the Services shall be deemed to occur upon the earliest of: (a) Written acceptance by the Client of the delivered element; (b) Five (5) business days after delivery of the element to the Client, unless the Client provides specific written objections detailing material non-conformities with the specifications; (c) When the delivered element is used by the Client in any way for productive or business purposes; or (d) When all of the following conditions are met: (i) The deliverables specified for that element have been completed and delivered to the Client; (ii) The delivered work substantially conforms to the specifications and requirements set forth for that element; and (iii) Any remaining items to be completed are minor refinements or adjustments that do not materially affect core functionality.

Technical Implementation Warranty. Service Provider warrants that all automated workflows, integrations, and technical implementations will: (a) Function substantially in accordance with the specifications; (b) Be compatible with the Client’s operating environment; and (c) Not contain any intentional mechanisms or code designed to disrupt, disable, harm, or otherwise impede operation.

Limitations on Technical Warranty. The technical implementation warranty does not apply to issues arising from: (a) Changes to Client’s operating environment not approved by Service Provider; (b) Third-party software or platform modifications outside Service Provider’s control; (c) Client’s failure to implement reasonable security measures; (d) Usage of the Assets in a manner not contemplated at time of development; or (e) Modifications to the Assets made by anyone other than Service Provider.

Non-Material Issues. The existence of minor refinements or non-material issues shall not preclude Substantial Completion. An issue shall be considered minor or non-material if it does not: (a) Prevent the primary intended use of the element; (b) Cause a failure of the element’s core functionality; or (c) Create material security risks.

Exclusions and Limitations. This warranty does not cover: (a) Performance issues resulting from changes in Client’s business processes or usage patterns; (b) Issues arising from Client-provided materials or instructions; (c) Problems caused by third-party platforms or services; (d) Changes in relevant laws or regulations that affect system functionality; or (e) Issues arising from Client’s failure to maintain required licenses or subscriptions.

Business Coaching Warranty. With respect to any business coaching services provided, Service Provider warrants only that such services will be provided in good faith based on Service Provider’s experience and knowledge. NO WARRANTY IS MADE REGARDING THE RESULTS OR OUTCOMES OF IMPLEMENTING ANY COACHING ADVICE OR MATERIALS.

Remedy. During the applicable Warranty Period, Service Provider shall promptly correct or repair any defects covered by this warranty at no additional cost to the Client. This remedy is the Client’s exclusive remedy for any defects in the Services or Assets.

Third-Party Products. For third-party products or services recommended or implemented by Service Provider, the only warranties are those provided by the third-party vendors. Service Provider assigns to Client all assignable warranties provided by third-party vendors but makes no independent warranties regarding such products or services.

Marketing Materials and Examples. Any case studies, testimonials, examples, or results shown in Service Provider’s marketing materials, website, presentations, or other communications are for illustrative purposes only and do not constitute any guarantee, warranty, or commitment regarding the Services. Client acknowledges that: (a) Results shown in marketing materials are based on specific circumstances that may not be applicable to Client; (b) Performance metrics and benefits described in marketing materials are not guarantees of similar results; (c) Implementation timelines shown in examples may vary based on Client’s specific circumstances; (d) Cost savings or efficiency gains mentioned in marketing materials are estimates and not commitments; and (e) Testimonials and case studies represent individual experiences and are not indicative of standard results.

DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, THE SERVICES AND ANY ASSETS ARE PROVIDED “AS IS” AND SERVICE PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.\

SERVICE PROVIDER ACCESS AND CLIENT RESPONSIBILITIES.

Time is of Essence. The Client acknowledges that any delay in providing information, access, or responses may result in delays or degradation in the Services. If any Client-caused delay exceeds three (3) business days, the scope of the provided Services may be adjusted accordingly to account for the time lost.

System Access Requirements. Client shall provide and maintain appropriate access for Service Provider to all systems necessary for the performance of Services, including but not limited to: (a) Administrative access to relevant platforms and software; (b) Necessary API keys and credentials; (c) VPN or remote access where required; (d) Test environments when applicable; and (e) Access to relevant databases and data sources.

Accuracy of Information. The Client bears full responsibility for ensuring that all information, specifications, and documentation provided to Service Provider are accurate, complete, and up-to-date, including but not limited to: (a) Technical specifications and requirements; (b) Access credentials and permissions; (c) Business process descriptions; (d) System configurations and settings; and (e) Any other information required for the Services.

Platform and License Maintenance. Client shall be responsible for: (a) Maintaining all required third-party software licenses and subscriptions; (b) Ensuring timely payment of all platform fees; (c) Adhering to all third-party platform terms of service; (d) Promptly notifying Service Provider of any platform changes or updates; and (e) Obtaining any necessary approvals or permissions for Service Provider’s use of third-party platforms.

Technical Environment. Client shall maintain a suitable technical environment as required for the Services, including: (a) Meeting minimum system requirements as specified by Service Provider; (b) Maintaining appropriate security measures and protocols; (c) Implementing and maintaining required backups; (d) Ensuring adequate internet connectivity and bandwidth; and (e) Maintaining current versions of required software and platforms.

Testing and Verification. When requested by Service Provider, Client shall: (a) Participate in testing of implemented solutions; (b) Verify accuracy of automated workflows; (c) Review and approve technical specifications; (d) Validate system integrations; and (e) Confirm functionality of implemented features.

Personnel and Resources. Client shall: (a) Designate a primary contact with decision-making authority; (b) Ensure availability of necessary personnel for meetings and testing; (c) Provide access to subject matter experts when required; and (d) Maintain internal technical support capabilities as needed.

Data Quality and Management. Client is responsible for: (a) Data quality and accuracy; (b) Proper data formatting and structure; (c) Data backup and retention; (d) Compliance with data protection requirements; and (e) Proper data handling and security practices.

No Service Provider Liability. Service Provider shall not be liable for: (a) Delays or issues arising from Client’s failure to meet these responsibilities; (b) Problems caused by inaccurate or incomplete Client information; (c) Issues arising from Client’s technical environment; (d) Security incidents resulting from Client’s failure to maintain security measures; or (e) Service degradation resulting from Client’s platform modifications.

Consequences of Non-Compliance. Failure by Client to meet these responsibilities may result in: (a) Service delays or interruptions; (b) Additional costs or fees; (c) Limited effectiveness of implemented solutions; (d) Reduced system performance or reliability; and (e) Termination of Services if such failure constitutes a material breach.

SECURITY AND TECHNICAL STANDARDS.

Security Measures. Service Provider shall implement and maintain appropriate technical and organizational security measures, including: (a) Access control and authentication systems; (b) Encryption of sensitive data in transit and at rest; (c) Regular security assessments and testing; (d) Security incident response procedures; and (e) Regular security training for personnel.

Data Protection. Service Provider shall: (a) Process Client data only as necessary to provide the Services; (b) Maintain appropriate data backup procedures; (c) Implement data recovery capabilities; (d) Follow industry standard data protection practices; and (e) Promptly notify Client of any data security incidents.

Technical Standards. All Services shall be provided in accordance with: (a) Industry standard best practices; (b) Applicable technical standards and frameworks; (c) Relevant security guidelines; (d) Agreed-upon technical specifications; and (e) Professional coding and development standards.

Compliance Requirements. Service Provider shall maintain compliance with: (a) Applicable data protection laws; (b) Industry-specific regulations as specified by Client; (c) Security standards relevant to the Services; (d) Technical certification requirements; and (e) Professional standards applicable to the Services.

EMPLOYEE SOLICITATION AND HIRING.

Non-Solicitation. During the Term, and for twelve (12) months after the termination of the Service Agreement, Client agrees to not directly or indirectly: (a) Solicit or recruit any employees of Service Provider; (b) Induce employees to terminate their employment with Service Provider; (c) Hire any employees of Service Provider; (d) Engage former employees of Service Provider as contractors; or (e) Assist others in any such activities.

Acknowledgment. Client acknowledges that: (a) These restrictions are reasonable and necessary to protect Service Provider’s business interests; (b) Client has received valuable consideration in exchange for these restrictions; (c) The duration and scope of these restrictions are reasonable; and (d) Violation of these restrictions would cause irreparable harm to Service Provider.

Remedies. In addition to other remedies available under this Agreement or applicable law, violation of these provisions shall: (a) Be grounds for immediate termination of the Agreement; (b) Entitle Service Provider to injunctive relief; (c) Require Client to pay liquidated damages to Service Provider in an amount equal to one year’s salary for each employee solicited or hired; (d) Not be subject to the liability caps in this Agreement; and (e) Require Client to pay all costs of enforcement.

INTELLECTUAL PROPERTY.

Service Provider’s Pre-Existing IP. All intellectual property rights, including but not limited to: (a) Patents, trademarks, and copyrights; (b) Trade secrets and proprietary methodologies; (c) Software code, algorithms, and tools; (d) Business processes and frameworks; and (e) Configuration templates and patterns owned by Service Provider prior to this Agreement (“Service Provider’s IP”) shall remain the exclusive property of Service Provider.

Developed Technical Solutions. Unless explicitly transferred according to the Ownership, Transfer of Assets, and Access Rights section of this Agreement, Service Provider shall retain all intellectual property rights to: (a) Custom automation workflows and scripts; (b) System integration methods and configurations; (c) Technical architecture designs and implementations; (d) Database schemas and data models; and (e) Administrative tools and utilities developed during the Term.

Business Coaching IP. All intellectual property related to business coaching services, including but not limited to: (a) Coaching methodologies and frameworks; (b) Training materials and documentation; (c) Business process templates and worksheets; (d) Analysis tools and assessments; and (e) Strategic planning materials, shall remain the exclusive property of Service Provider at all times and are not subject to transfer.

Client’s Pre-Existing IP. Any intellectual property owned by the Client prior to this Agreement shall remain the exclusive property of the Client, including but not limited to: (a) Client’s existing software and systems; (b) Client’s proprietary business processes; (c) Client’s data and content; (d) Client’s trademarks and branding; and (e) Client’s existing documentation and materials.

Client Data and Content. The Client shall retain all intellectual property rights to: (a) Data processed by the Assets; (b) Content created using the Assets; (c) Business information stored in the systems; (d) Client-specific configurations and settings; and (e) Client’s confidential information.

Limited License Grant. Service Provider grants Client a limited, non-exclusive license to use Service Provider’s IP solely as necessary to receive the Services during the Term. This license: (a) Is non-transferable; (b) Is non-sublicensable; (c) Is limited to Client’s internal business purposes; and (d) Terminates automatically upon termination of this Agreement.

Third-Party IP. Client shall obtain and maintain all necessary licenses for any third-party intellectual property required for the Services. Service Provider shall not be responsible for: (a) Obtaining third-party licenses; (b) Third-party IP infringement claims; (c) Costs associated with third-party licenses; (d) Compliance with third-party terms; or (e) Performance of third-party products.

Restrictions. Client shall not: (a) Reverse engineer any Service Provider IP; (b) Remove or modify any proprietary markings; (c) Transfer or sublicense any Service Provider IP; (d) Use Service Provider IP for any unauthorized purpose; or (e) Create derivative works without written permission.

IP Indemnification. Service Provider shall defend and indemnify Client against third-party claims alleging that the Assets as delivered infringe any valid patent, copyright, or trademark, provided that: (a) Client promptly notifies Service Provider of such claim; (b) Client gives Service Provider sole control of the defense; (c) Client cooperates in the defense; (d) The claim does not arise from Client modifications; and (e) The claim does not arise from combination with non-Service Provider products.

No Implied Rights. Except as expressly stated in this Agreement: (a) No license rights are granted by implication or estoppel; (b) All rights not expressly granted are reserved; (c) No ownership rights are transferred except as specified in the Ownership section; (d) No rights to future updates or modifications are granted; and (e) No rights to Service Provider’s IP are granted beyond the Term.

CONFIDENTIALITY.

Definition of Confidential Information. “Confidential Information” means all data and information of a confidential nature, including know-how and trade secrets, relating to the business, affairs, and services of such Party. This includes, but is not limited to: (a) Technical specifications, configurations, and system architectures; (b) Source code, algorithms, and automation workflows; (c) Business processes, methodologies, and coaching materials; (d) Client data and operational information; and (e) Access credentials and security protocols.

Obligations of Confidentiality. The Receiving Party agrees to: (a) Maintain the confidentiality of the Confidential Information and exercise at least the same degree of care it uses for its own confidential information, but no less than reasonable care; (b) Use the Confidential Information solely for performing its obligations under this Agreement; (c) Not disclose the Confidential Information to any third party without prior written consent; and (d) Ensure any authorized persons receiving Confidential Information are bound by similar confidentiality obligations.

Exclusions. Confidential Information does not include information that: (a) Is or becomes publicly known through no breach of this Agreement; (b) Was in the Receiving Party’s possession prior to receipt from the Disclosing Party; (c) Is rightfully received from a third party without a duty of confidentiality; or (d) Is independently developed without use of the Confidential Information.

Return or Destruction. Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all copies of the Confidential Information in its possession or control, except for copies that must be retained for legal or regulatory purposes.

Duration. The obligations of confidentiality set forth in this Agreement shall survive the termination or expiration of this Agreement.

LIMITATION OF LIABILITY.

Indirect Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SERVICE PROVIDER SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO: (a) Loss of profits, revenue, or business opportunities; (b) Loss of data or system functionality; (c) Business interruption or downtime; (d) Cost of replacement systems or services; or (e) Damage to reputation or goodwill, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Total Liability Cap. THE TOTAL AGGREGATE LIABILITY OF SERVICE PROVIDER TO CLIENT FOR ANY AND ALL CLAIMS, DAMAGES, LOSSES, AND EXPENSES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

System Changes and Updates. Service Provider shall not be liable for any losses or damages resulting from: (a) Changes to Client’s technical environment or systems; (b) Third-party software updates or modifications; (c) Client’s failure to implement recommended security measures; (d) Client’s modifications to the Assets; or (e) Changes in Client’s business processes or operations.

Business Coaching. Service Provider shall have no liability for: (a) Client’s implementation of coaching advice; (b) Business outcomes or results; (c) Client’s business decisions; (d) Market conditions or changes; or (e) Third-party reactions to Client’s business changes.

Data and Security. Client acknowledges that Service Provider is not liable for: (a) Data loss or corruption caused by factors outside Service Provider’s direct control; (b) Security breaches not directly caused by Service Provider’s gross negligence; (c) Unauthorized access through Client-controlled credentials; (d) Consequences of Client’s security practices; or (e) Third-party actions affecting Client’s systems.

Third-Party Services. Service Provider shall have no liability arising from: (a) Third-party platform performance or availability; (b) Changes to third-party APIs or services; (c) Third-party service pricing or terms; (d) Integration with third-party services; or (e) Third-party compliance with laws or regulations.

Essential Purpose. The limitations of liability set forth in this section are fundamental elements of the basis of the bargain between Service Provider and Client. The Services would not be provided without such limitations. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

Risk Allocation. Client acknowledges that the fees charged by Service Provider reflect the allocation of risk and limitations of liability contained in this Agreement, including the exclusion of special, incidental, consequential, or punitive damages.

INDEMNIFICATION.

Client Indemnification. Client agrees to indemnify, defend, and hold harmless Service Provider, its affiliates, and their respective directors, officers, employees, and agents (collectively, “Service Provider Indemnitees”) from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Client’s use of the Services or Assets in violation of this Agreement or applicable law; (b) Client’s failure to obtain necessary rights, permissions, or licenses; (c) Data, content, or materials provided by Client; (d) Client’s breach of third-party platform terms; or (e) Client’s failure to implement reasonable security measures.

Service Provider Indemnification. Service Provider agrees to indemnify, defend, and hold harmless Client and its directors, officers, employees, and agents from and against any claims alleging that the Services or Assets as delivered by Service Provider infringe any third-party intellectual property rights, provided that such claims do not arise from: (a) Client modifications to the Assets; (b) Combination of the Assets with non-Service Provider products or services; (c) Client’s failure to implement updates or corrections; (d) Use of the Assets in violation of this Agreement; or (e) Compliance with Client’s specifications or requirements.

Indemnification Procedures. The indemnified party shall: (a) Promptly notify the indemnifying party in writing of any claim; (b) Give the indemnifying party sole control over the defense and settlement; (c) Provide reasonable cooperation in the defense; (d) Not settle or compromise any claim without written consent; and (e) Allow the indemnifying party to participate in the defense at its own expense.

Mitigation of Infringing Services. If the Services or Assets become, or in Service Provider’s opinion are likely to become, the subject of an infringement claim, Service Provider may at its option and expense: (a) Modify the Services or Assets to be non-infringing; (b) Obtain a license for Client’s continued use; (c) Replace the Services or Assets with a non-infringing equivalent; or (d) Terminate the Services and refund any pre-paid fees for the terminated portion.

Exclusive Remedy. The provisions of this section state the sole, exclusive, and entire liability of the indemnifying party to the indemnified party, and are the indemnified party’s sole remedy, with respect to the claims described herein.

ENFORCEMENT COSTS.

Collection Costs. If it becomes necessary for Service Provider to enforce this Agreement, Client shall pay all costs of collection and enforcement, including but not limited to: (a) Attorney’s fees; (b) Collection agency fees; (c) Court costs and filing fees; (d) Costs of discovery and evidence gathering; and (e) Expert witness fees.

Legal Proceedings. In any legal action or proceeding related to this Agreement, the prevailing Party shall be entitled to recover: (a) Reasonable attorneys’ fees; (b) Court costs and expenses; (c) Appeal-related costs; (d) Costs of enforcing any judgment; and (e) Post-judgment collection costs.

Alternative Dispute Resolution. Costs of any alternative dispute resolution proceedings shall be: (a) Initially shared equally by the Parties; (b) Ultimately borne by the non-prevailing Party; (c) Included in any final award or judgment; (d) Subject to documentation requirements; and (e) Payable within 30 days of final determination.

FORCE MAJEURE.

Definition. A “Force Majeure Event” means any event or circumstance beyond a Party’s reasonable control that prevents or delays its performance of any obligation under this Agreement, including but not limited to: (a) Acts of God, natural disasters, or extreme weather conditions; (b) War, terrorism, civil unrest, or government actions; (c) Regional or national emergencies; (d) Widespread internet or telecommunications failures; or (e) Infrastructure outages affecting third-party cloud or hosting providers.

Technical Service Considerations. The following shall not constitute Force Majeure Events: (a) Planned maintenance of systems or services; (b) Individual platform or software outages; (c) Issues arising from a Party’s negligence or misconduct; (d) Localized internet or power disruptions; or (e) Financial hardship or market conditions.

Notification. If a Party is prevented from performing its obligations due to a Force Majeure Event, that Party shall: (a) Promptly notify the other Party in writing; (b) Describe the nature and extent of the Force Majeure Event; (c) Indicate the expected duration of the disruption; (d) Keep the other Party informed of developments; and (e) Resume performance as soon as reasonably possible.

Business Continuity. During a Force Majeure Event, the affected Party shall: (a) Use commercially reasonable efforts to minimize disruption; (b) Implement applicable disaster recovery procedures; (c) Maintain essential services where possible; (d) Protect and preserve Client data; and (e) Maintain regular communication with the other Party.

Effect on Obligations. Neither Party shall be in breach of this Agreement or liable for any delay or failure to perform any obligation under this Agreement if such delay or failure results from a Force Majeure Event, provided that the affected Party continues to use reasonable efforts to mitigate the impact and resume performance.

Extended Duration. If a Force Majeure Event continues for more than thirty (30) consecutive days, either Party may terminate the affected Services upon written notice to the other Party, without liability except for payment obligations accrued before the Force Majeure Event.

RELATIONSHIP OF THE PARTIES.

Independent Contractors. The Parties acknowledge and agree that the relationship between Service Provider and Client is solely that of independent contractors. Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party shall have any authority to bind or obligate the other Party in any manner whatsoever.

No Authority to Bind. Neither Party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act or omission, except as expressly provided in this Agreement.

No Employee Benefits. Employees or agents of one Party shall not be deemed employees or agents of the other Party and shall not be entitled to any benefits that the other Party provides to its employees, including but not limited to: (a) Compensation, insurance, or retirement benefits; (b) Participation in employee benefit plans; (c) Paid time off or vacation; (d) Workers’ compensation coverage; or (e) Unemployment insurance benefits.

Taxes and Withholdings. Each Party shall be responsible for its own: (a) Federal, state, and local taxes; (b) Payroll taxes and withholdings; (c) Workers’ compensation insurance; (d) Unemployment insurance contributions; and (e) Other statutory obligations related to its personnel.

Non-Exclusive Relationship. This Agreement is non-exclusive, and nothing herein shall preclude either Party from: (a) Entering into similar agreements with other parties; (b) Developing competing products or services; (c) Working with competitors of the other Party; (d) Marketing similar services to others; or (e) Using similar processes or technologies for other clients, except where doing so would violate confidentiality obligations.

DISPUTE RESOLUTION AND GOVERNING LAW.

Choice of Law. THIS AGREEMENT AND ANY DISPUTES ARISING OUT OF OR RELATING TO IT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE OF THE UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISIONS THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.

Internal Resolution Process. In the event of a dispute, the Parties shall first work together in good faith to resolve the matter internally by negotiating between higher levels of management who have the authority to settle such controversy.

Exclusive Jurisdiction. The Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the state of Delaware of the United States of America, for the purpose of any suit, action, or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

Consent to Jurisdiction. Each Party hereby irrevocably and unconditionally consents to the jurisdiction of such courts and waives any objection it may have to the laying of venue of any such suit, action, or proceeding brought in such courts.

Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

Technical Dispute Resolution. For disputes primarily involving technical matters, including but not limited to: (a) System functionality or performance; (b) Data integrity or accuracy; (c) Integration specifications; (d) Security requirements; or (e) Technical documentation, the Parties agree to engage a mutually acceptable technical expert to provide a non-binding assessment before proceeding with formal legal action.

Costs and Attorney’s Fees. In any legal action or proceeding brought under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses from the non-prevailing Party, including any costs of collection or enforcement of judgment.

Enforceability of Judgments. The Parties agree that a final judgment in any suit, action, or proceeding referred to in this Agreement shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

AMENDMENTS.

Amendment Procedure. This Agreement may be amended, modified, or supplemented only by a written instrument executed by both Parties hereto. Any amendment, modification, or supplement shall be deemed effective as of the date specified in such written instrument.

No Implied Amendments. No course of dealing or trade usage and no delay on the part of either Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof.

ASSIGNMENT.

Restrictions on Assignment. Neither Party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign its rights and obligations under this Agreement without such consent to: (a) An affiliate; or (b) A successor in connection with a merger, acquisition, or sale of all or substantially all of its assets.

Client Account Requirements. Client may not transfer or assign any user accounts, access credentials, or system configurations without Service Provider’s prior written consent.

NOTICES.

Delivery Method. All notices, requests, and other communications required under this Agreement shall be in writing and delivered via email to the designated email addresses below.

Designated Email Addresses of Service Provider: support@swans.co

Effectiveness. A notice shall be deemed given and effective on the date sent if sent during business hours (9:00 AM to 5:00 PM EST), or on the next business day if sent outside of business hours.

SEVERABILITY.

Severability of Provisions. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the provision shall be deemed severed from this Agreement in that jurisdiction, and the remaining provisions shall remain in full force and effect.

Service Continuity. The severability of any provision shall not affect the continuity of Services or the validity of any other provisions of this Agreement.

ENTIRE AGREEMENT.

Integration. This Agreement, including any Service Agreements and incorporated documents, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral.

No Reliance. Each Party acknowledges that in entering into this Agreement, it has not relied on any representation, warranty, or statement not expressly set forth herein.

SURVIVAL.

Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement: (a) Confidentiality obligations; (b) Intellectual property rights; (c) Payment obligations for Services rendered; (d) Indemnification obligations; (e) Limitations of liability; and (f) Any other provisions which by their nature are intended to survive termination.

WAIVER.

No Implied Waivers. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. No waiver of any provision shall be effective unless in writing and signed by the Party waiving such provision.

Independent Rights. Any waiver of any provision shall not affect the right of any Party to enforce any other provision of this Agreement thereafter.

COUNTERPARTS.

Execution. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original. Signatures delivered electronically shall be deemed original signatures.

Electronic Signatures. The Parties agree that electronic signatures shall be valid and binding to the same extent as original signatures.