Terms and Conditions

These Terms and Conditions (“Terms”) form a binding agreement between Swell Country LLC, doing business as Swell Digital Marketing OS (“SWELL,” “we,” “us,” or “our”), and the business or other entity identified during registration or checkout (“Client,” “you,” or “your”). They govern the hosted software, artificial intelligence features, automation, integrations, documentation, and related services we make available (collectively, the “Platform”).

By selecting an unchecked box stating that you agree to these Terms and then submitting your registration, order, or payment authorization, you accept these Terms electronically on behalf of Client. Acceptance takes effect when recorded through that process (the “Effective Date”). A handwritten signature is not required. If you do not agree, do not complete enrollment or use the Platform.

The individual accepting represents that they are at least 18 years old and authorized to bind Client. The Platform is offered for business and professional use, not personal, family, or household purposes. These Terms do not waive rights that applicable law does not permit the parties to waive.

An “Order” means a checkout or payment-link order summary affirmatively accepted by Client, or a written order form signed by the parties. It identifies the plan, fees, billing interval, applicable usage rates, included allowances, and any special commercial terms. These Terms and the applicable Order together constitute the agreement. Separate managed advertising, consulting, custom development, or implementation services are included only if expressly listed in an Order.

The Platform may include AI content generation, agents, workflows, CRM functionality, funnels, lead management, analytics, campaign tools, and third-party connections. Features and limits depend on the selected plan. Unless an Order expressly states otherwise, no particular uptime level, support response time, custom deliverable, advertising spend, or business result is promised.

Client must provide accurate registration and billing information, safeguard credentials, and promptly notify SWELL of suspected unauthorized access. Client is responsible for users it authorizes and their activity within the permissions Client grants, but not for unauthorized activity caused by SWELL’s breach of this agreement. Client must revoke access when a user no longer needs it and use available security controls reasonably. Access may not be shared outside Client’s authorized organization or purchased user allowance.

During the applicable subscription term, subject to payment and compliance with these Terms, SWELL grants Client a limited, non-exclusive, non-transferable right for authorized users to access the Platform for Client’s internal business operations. Client may use its permitted Output in its ordinary marketing and business activities as provided in Section 11.

Client must not sell, sublicense, redistribute, or provide unauthorized third parties access to the Platform; bypass access controls, usage meters, or safety measures; introduce malware; interfere with other users; scrape or extract proprietary components; or reverse engineer the Platform except to the limited extent applicable law expressly permits despite this restriction.

Client must not copy or disclose SWELL’s proprietary prompts, agents, automation logic, templates, layouts, funnels, reports, SOPs, frameworks, methodologies, or source code to build a competing service or train another model or system without SWELL’s written permission. These restrictions do not prohibit lawful use of Client Data, independently developed materials, or Client-owned Output that does not contain SWELL’s proprietary components.

Client must not use the Platform for unlawful, deceptive, infringing, discriminatory, harassing, or fraudulent activity; impersonation without authorization; fabrication of testimonials; unsolicited communications that violate applicable requirements; or prohibited high-risk uses. Client must comply with applicable laws, advertising policies, and third-party terms disclosed for the integrations it enables.

“Input” means prompts, instructions, files, and other content submitted to the Platform. “Output” means content generated for Client in response to Input. AI may produce inaccurate, incomplete, biased, offensive, or non-unique Output, including fabricated facts, citations, or claims. Output may resemble content generated for others. SWELL does not warrant that Output is accurate, exclusive, legally protectable, or free of third-party rights.

Client must evaluate and verify Output before relying on it, publishing it, or sending it to others. Client remains responsible for final claims, offers, targeting, disclosures, and decisions. The Platform does not provide legal, medical, financial, or other licensed professional advice, and must not be relied on as a substitute for qualified professional judgment or as an emergency service.

Client must not use the Platform as the sole basis for consequential decisions concerning health care, employment, credit, housing, insurance, or legal rights, or for safety-critical control systems. Any permitted assistance in a regulated workflow remains subject to qualified human review and applicable law.

Client controls which integrations and automation permissions it enables. By enabling an agent or workflow, Client authorizes actions within the configured scope, which may include sending messages, publishing content, changing records, calling APIs, or incurring usage and third-party charges. Client must review configurations, recipients, budgets, and approval settings before activation and monitor ongoing activity. SWELL is not authorized by these Terms alone to spend an undisclosed advertising budget or purchase unapproved services. Disabling a workflow may not reverse actions already completed or charges already incurred.

Client will pay the fees, usage charges, and applicable taxes disclosed in the accepted Order. Subscription fees are billed in advance and metered usage in arrears, unless the Order states another schedule. Advertising spend, telecommunications, AI models, APIs, enrichment, hosting, and other third-party expenses may be charged separately only as disclosed or separately authorized. No undisclosed subscription fee is created solely by accepting these Terms.

Client authorizes SWELL and its payment processor to store payment credentials or tokens and charge the payment method on file for the subscription, renewals expressly accepted at checkout, metered usage at the disclosed rates, authorized third-party costs, and other valid amounts due. Where a separate authorization is required for ACH or another payment method, Client must complete that authorization. A TOS checkbox does not replace it.

Usage-based charges vary with actual consumption. Client is responsible for authorized usage exceeding any included allowance or remaining promotional credit. Unless a spending cap is expressly agreed, the credit or allowance is not a spending limit and service need not stop when it is exhausted. Estimates, dashboards, and alerts are conveniences and do not excuse valid charges if an alert is delayed or absent. Charges remain subject to the rates and permissions Client accepted.

Client must maintain current billing details and replace a declined payment method within three business days after notice. SWELL may suspend access for nonpayment. Client should report billing disputes promptly with supporting details; SWELL will investigate in good faith. Nothing here limits mandatory dispute or payment rights. Except as expressly provided in these Terms, an Order, or applicable law, paid fees are nonrefundable and unused periods or allowances do not earn a refund. Duplicate, erroneous, or unauthorized charges will be corrected.

The default subscription is month-to-month. A paid subscription renews automatically for the billing interval clearly disclosed and affirmatively accepted in the Order until canceled. A fixed or annual commitment applies only if expressly accepted in the Order. Free access or promotional enrollment does not automatically become a paid subscription unless the conversion price, date, and recurring terms were disclosed and affirmatively accepted in advance.

Unless the Order expressly provides a different cancellation rule, either party may terminate on at least 30 days’ written notice. Client may submit notice through the cancellation control made available in the account or by contacting the support address shown in its Order or account. An electronic cancellation request is written notice. SWELL will confirm the effective termination date; cancellation is not dependent on a retention call or SWELL’s discretionary approval.

For the default month-to-month plan, charges accrue through the effective termination date. If that date falls within a later prepaid billing period, SWELL will prorate or refund that later period for days after termination. Usage and authorized third-party charges incurred before termination remain payable. Any shorter cancellation period or more favorable mandatory right under applicable law controls. An Order with a different commitment must clearly disclose its cancellation deadline and financial consequences before acceptance.

SWELL will provide at least 30 days’ advance notice of increases to recurring fees or usage rates. Changes apply prospectively, no earlier than the next renewal after that notice, and not during a prepaid fixed-price commitment. Client may cancel before increased rates take effect. Any consent or longer notice required by applicable law will be obtained or provided.

“Client Data” means Input and other business, contact, account, or personal data Client submits or connects to the Platform. As between the parties, Client retains its rights in Client Data. Client grants SWELL a limited license to access, host, process, transmit, and use Client Data only as reasonably necessary to deliver, secure, support, and maintain the Platform, follow Client’s instructions, or comply with law.

Client represents that it has the rights, permissions, notices, and lawful basis needed to provide Client Data and authorize its processing. Client determines the purposes of its marketing and customer-data activities. Each party is responsible for obligations applicable to its own role under privacy and data-protection laws. An applicable data processing addendum (“DPA”) governs processing on Client’s behalf where required. The Privacy Policy presented at enrollment describes SWELL’s handling of information for its own business purposes; it does not expand the processing license in this section.

SWELL will not use identifiable Client Data or Client Confidential Information to train generalized AI models without Client’s express written authorization. SWELL may engage service providers, including AI providers, to process Client Data for delivery of the Platform under applicable contractual protections. Client must not enable a third-party integration with incompatible data-use terms without separately evaluating and accepting those terms. SWELL remains responsible for its own service-provider obligations under this agreement and any applicable DPA.

SWELL will maintain reasonable administrative, technical, and organizational safeguards appropriate to the Client Data it is authorized to process. SWELL will notify Client without undue delay after confirming unauthorized access to Client Data within systems under SWELL’s control and provide available information reasonably needed for Client’s response, subject to legal restrictions. No specific certification or regulatory compliance status is promised unless stated in a signed agreement.

Do not submit protected health information, payment-card security codes, passwords for unrelated systems, government identifiers, biometric identifiers, or other highly sensitive regulated data unless SWELL expressly approves that use in writing and the required safeguards and agreements are in place. Protected health information requires an applicable signed business associate agreement (“BAA”) before submission. A clinic account or acceptance of these Terms alone does not establish HIPAA compliance or a BAA.

Client is responsible for lawful contact lists, recipient consent, suppression and do-not-contact lists, opt-outs, advertising claims, call-recording permissions, and required disclosures for SMS, email, calls, AI-generated voices, and automated outreach. Client must honor withdrawals of consent and must not use the Platform to evade platform policies or applicable communications laws. Acceptance of these Terms is not consent by Client’s customers to receive marketing. SWELL is responsible for compliance obligations applicable to its own conduct.

As between SWELL and Client, and to the extent rights exist and may lawfully be transferred, Client owns Output generated specifically for Client, excluding SWELL materials and third-party materials embedded in it. SWELL assigns to Client any transferable rights SWELL holds in that Output. This allocation does not create copyright or exclusive rights where the law does not recognize them, or transfer another party’s rights.

SWELL retains all rights in the Platform and its software, proprietary prompts, agents, automation logic, templates, methods, documentation, improvements, and other pre-existing or reusable components. To the extent an authorized Output contains such SWELL components, Client receives a non-exclusive license to use those components only as embedded in that Output for Client’s business purposes, including after termination. Client may not extract, resell, or use them to recreate the Platform. Third-party materials remain subject to applicable third-party licenses.

“Confidential Information” means nonpublic information disclosed by either party that is marked confidential or reasonably should be understood to be confidential, including Client Data, security information, pricing not publicly offered, and SWELL’s proprietary technology. It excludes information independently developed, lawfully received without restriction, already lawfully known, or publicly available without breach.

Each party will use the other’s Confidential Information only to perform or exercise rights under this agreement, protect it with reasonable care, and disclose it only to personnel or service providers with a need to know and appropriate confidentiality obligations. Legally compelled disclosure is permitted with advance notice where lawful and reasonable cooperation to limit disclosure. These obligations survive for three years after termination, and for trade secrets and personal data for as long as applicable law requires protection.

Client may provide suggestions and product feedback. SWELL may use that feedback without compensation or restriction to improve its products, but this permission does not authorize disclosure of Client Confidential Information or use of Client’s identity in marketing. Outside the Early Access Program in Section 19, testimonials and public use of Client’s name or logo require separate approval.

Third-party models, APIs, payment services, advertising platforms, telecommunications networks, and integrations may have their own terms, limits, and outages. Client is responsible for accounts and services it obtains directly. SWELL does not control third-party pricing, policy changes, account suspensions, or discontinued features, and may substitute providers where commercially reasonable, subject to any DPA or BAA requirements. This does not excuse SWELL’s own obligations for its subcontractors.

SWELL may update the Platform for maintenance, security, legal compliance, or product development. Beta and experimental features may change or be withdrawn. For a material reduction of core paid functionality during a prepaid term, SWELL will provide reasonable advance notice where practicable and allow Client to terminate the affected service with a prorated refund of unused prepaid subscription fees. Urgent security or legal changes may take effect immediately.

Each party represents that it has authority to enter this agreement. SWELL will provide the Platform using reasonable skill and care. Client is responsible for its connectivity, business processes, independent backups, and review of Output.

EXCEPT FOR EXPRESS COMMITMENTS IN THESE TERMS OR AN ORDER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PLATFORM, AI FEATURES, AND OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SWELL DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SWELL DOES NOT WARRANT UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE OPERATION OR THE ACCURACY OR SUITABILITY OF OUTPUT.

SWELL does not guarantee revenue, profit, return on investment, leads, customers, conversions, rankings, advertising performance, operational savings, or other business outcomes. Examples, forecasts, and demonstrations are illustrative. Beta features may contain errors, incomplete functionality, or interruptions and should not be used where their failure could cause significant harm.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY IS LIABLE UNDER THIS AGREEMENT FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, REVENUE, BUSINESS OPPORTUNITIES, OR GOODWILL, EVEN IF ADVISED OF THEIR POSSIBILITY.

EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF US $1,000 OR THE FEES PAID OR PAYABLE BY CLIENT TO SWELL FOR THE PLATFORM IN THE 12 MONTHS BEFORE THE FIRST EVENT GIVING RISE TO LIABILITY. THIS IS ONE AGGREGATE CAP, NOT A CAP PER CLAIM. PROMOTIONAL CREDITS AND ADVERTISING SPEND PAID DIRECTLY TO THIRD PARTIES ARE NOT FEES FOR THIS PURPOSE.

These exclusions and the cap do not limit Client’s payment obligations, either party’s fraud, willful misconduct, or gross negligence, or liability that applicable law does not permit to be excluded or limited. The cap otherwise applies to confidentiality, data-security, and indemnification claims. The parties acknowledge that these allocations are reflected in the pricing.

Client will defend and indemnify SWELL against third-party claims, resulting damages finally awarded, and reasonable settlement amounts and defense costs arising from Client Data that infringes another person’s rights, Client’s unlawful marketing or communications, or Client’s material breach of Section 4. This obligation does not apply to the extent a claim results from SWELL’s breach, negligence, or misconduct, or solely from unmodified AI Output generated by the Platform.

SWELL must promptly notify Client of a claim, provide reasonable cooperation at Client’s expense, and allow Client to control the defense with qualified counsel. Late notice relieves Client only to the extent materially prejudiced. Client may not settle a claim in a way that admits fault by SWELL, imposes nonmonetary obligations, or fails to fully release SWELL without SWELL’s prior written consent, not to be unreasonably withheld. SWELL may participate with its own counsel at its own expense. This section is subject to Section 15.

SWELL may suspend access immediately when reasonably necessary to address a security threat, unlawful activity, abuse, or material risk to the Platform or others. SWELL may also suspend for nonpayment after notice. Where reasonably practicable, SWELL will explain the reason and provide an opportunity to resolve it. Suspension will be limited in scope and duration where feasible.

Either party may terminate for the other’s material breach not cured within 15 days after written notice. Immediate termination is permitted for a breach that cannot reasonably be cured or where continued service would be unlawful. Ordinary cancellation and program termination remain subject to Sections 8 and 19.

Upon termination, Platform access rights end and valid accrued charges remain due. On request made within 30 days after termination, SWELL will provide a reasonable export of Client Data in its possession in a commonly usable format, unless legally prohibited. Custom migration is not included. After that period, SWELL may delete Client Data subject to legal retention, backup cycles, and any DPA or BAA; retained data remains protected. Client should export essential information before access ends. Ownership, accrued payment obligations, confidentiality, liability limits, claims provisions, and terms intended by their nature to survive will survive termination.

SWELL may revise these Terms prospectively. Material changes will be notified by email or a prominent in-app notice at least 30 days before taking effect, except changes required sooner by law or urgent security needs. SWELL will request affirmative acceptance of material changes before applying them to continued service. Changes do not retroactively alter accrued rights or disputes. If Client declines, it may terminate before the change takes effect and receive a prorated refund of unused prepaid subscription fees for the affected period.

Operational and contractual notices may be sent to Client’s registered email or through the account. Client may send notices to SWELL through the support contact identified in its Order or account. SWELL will make that contact available before checkout and throughout the subscription. Client agrees to electronic delivery and may retain or print these Terms and order confirmations. Notices are effective on confirmed receipt; cancellation submissions are effective as notice when submitted through the designated channel.

Delaware law governs, excluding conflict-of-law rules. Subject to mandatory applicable law and any separately signed dispute-resolution agreement, courts of competent jurisdiction in Delaware have exclusive jurisdiction. These Terms do not impose mandatory arbitration or a class-action waiver.

These Terms, the accepted Order, and any applicable signed agreements are the complete agreement concerning the Platform. A signed MSA controls over conflicting provisions; a DPA or BAA controls its data-protection subject matter; an Order controls expressly specified pricing, plan, and commitment terms. Otherwise these Terms control. Unilateral purchase-order boilerplate does not amend this agreement. If a provision is unenforceable, the remainder continues. Failure to enforce is not a waiver. Neither party may assign the agreement without consent, except to a successor in a merger, reorganization, or sale of substantially all relevant assets that assumes the obligations. Neither party is responsible for delays caused by events reasonably beyond its control, excluding payment obligations already accrued. The parties are independent contractors.

This section applies only if Client is expressly enrolled in the Early Access Program in its Order. Qualification and the actual promotional credit amount must be confirmed at enrollment. Eligible Clients receive a one-time Platform Credit of up to US $1,000 for the entire Client relationship. It is not a monthly credit, does not renew or replenish, and may be consumed across billing periods until exhausted.

The credit applies only to eligible variable usage designated in the Order or account, such as AI, API, SMS, telephone, email, enrichment, automation, media generation, processing, hosting, or third-party software usage. SWELL determines eligibility in good faith. Credit is nontransferable, has no cash value, cannot offset unrelated charges, and is not a deposit or prepaid cash balance. All unused credit expires and is forfeited when participation or the Client relationship ends. No refund or payout is due for unused promotional credit.

Client pays 100% of usage beyond the remaining credit and all subsequent usage at the accepted rates. For example, a $1,000 credit reduced by $400 leaves $600; another $800 of eligible usage consumes the $600 balance and creates a $200 charge. Client must maintain a valid payment method. Credit exhaustion does not require SWELL to stop the Platform or cap spending, and does not by itself authorize an undisclosed recurring subscription.

In exchange for subsidized usage, Client will provide reasonable ongoing, good-faith feedback on usability, workflows, issues, and product improvements; designate a feedback representative; and participate in a feedback meeting of up to 30 minutes once per month on reasonable request. Client will provide necessary access, information, and cooperation. Delays caused by missing Client inputs are not SWELL’s responsibility.

After sufficient opportunity to use the Platform, Client agrees to participate in at least one reasonable video testimonial or case-study interview concerning its actual experience. No positive rating, favorable statement, exaggerated result, or false representation is required. Credit is not conditioned on favorable sentiment, and truthful negative feedback is not grounds for forfeiture.

For testimonial content and associated name and logo use that Client expressly approves for publication, Client grants SWELL a worldwide, royalty-free, non-exclusive license to reproduce, distribute, display, and promote that approved content, including reasonable edits for length or formatting that do not materially alter its meaning. SWELL may sublicense that use to production and distribution providers and transfer it with the relevant business. This license survives termination for the approved content. Client represents that its spokesperson has authority and that necessary permissions have been obtained. SWELL will disclose the promotional credit or other material connection where required.

Early Access participation is month-to-month and may be terminated by either party on 30 days’ written notice. SWELL may modify or discontinue the program on at least 30 days’ written notice. SWELL may end benefits sooner for material breach, nonpayment of an undisputed amount, failure to maintain a valid payment method, credit abuse, unauthorized access sharing, or repeated failure to participate reasonably in feedback after written notice. Unused credit is forfeited when benefits end unless SWELL agrees otherwise in writing. Any subsequent paid plan requires an Order or prior express authorization covering that plan and its price.

By completing the affirmative acceptance process, Client agrees to these Terms and the Order presented at checkout, including any expressly accepted renewal and usage-billing terms. Early Access obligations apply only when that program is identified in the Order. Marketing consent, optional data-training consent, and any required payment-method authorization are separate from agreement to these Terms.