Smartwaiver Terms of Service

Software as a Service Agreement

Updated: March 27, 2026

This software as a service agreement (this “​Agreement”) is made by and between SW Development, LLC d/b/a Smartwaiver, a Delaware limited liability company (“Smartwaiver”, “Company”, “our”, “ours”, “us”, or “we”), and you, an entity or other organization wishing to utilize our Services (“Customer​”, “you”, “your”, or “yours”). Smartwaiver and you may each be referred to as a “Party” and together as the “Parties”.

Smartwaiver offers an online service platform known as ‘Smartwaiver’ (the “Platform”), which is a customized digital waiver solution for small, medium, and enterprise customers. The Platform offers various services, functionality, and resources, which we refer to in this Agreement as the “Services”. We refer to the software that powers our Platform as the “Software”, and includes all updates, modifications, enhancements, corrections, bug fixes, patches, upgrades, and new versions of the Software (collectively, “Updates”). All access to and use of the Platform and Services is subject to this Agreement.

In addition to this Agreement, your access to and use of the Platform and Services is subject to our then-current policies relating to the Services, which are posted to http://www.smartwaiver.com/ (the “Site”) or otherwise delivered to you electronically (collectively, “Policies”). You are responsible for compliance with these policies and all other Smartwaiver policies applicable to the access and use of the Platform and Services posted to the Smartwaiver website or provided through the Services.

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

BY ACCESSING OR USING THE PLATFORM OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.

IF YOU DO NOT AGREE TO THE TERMS HEREOF, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, WE ARE NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR SERVICES.

THIS AGREEMENT IS ENTERED INTO AS OF YOUR FIRST ACCESS OR USE THE PLATFORM OR SERVICES (THE “EFFECTIVE DATE​”). THIS AGREEMENT (INCLUDING ANY AGREEMENTS, POLICIES, SCHEDULES, OR EXHIBITS INCORPORATED BY REFERENCE) IS SUBJECT TO CHANGE BY US WITHOUT PRIOR WRITTEN NOTICE AT ANY TIME, IN OUR SOLE DISCRETION. THE LATEST VERSION OF THIS AGREEMENT WILL BE POSTED ON OUR WEBSITE OR OTHERWISE DELIVERED TO YOU ELECTRONICALLY. YOUR CONTINUED USE OF THE PLATFORM OR SERVICES AFTER A POSTED CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH CHANGES.

1. DEFINITIONS. Capitalized terms have the meanings below or as otherwise provided in this Agreement.

1.1. Affiliate” of a Party means any entity that (as of the Effective Date, or thereafter) directly or indirectly Controls, is Controlled by, or is under common Control with that Party. “Control” means the power to direct or cause the direction of the affairs, policies, or management of a person or entity, whether through the ownership of voting securities, by contract, or otherwise.

1.2. “Aggregated Anonymous Data” means any of the following information as has been aggregated with other similar information of other Smartwaiver customers, and anonymized so that it does not reveal any personally identifying information or information identifying an individual: (a) information related to how Smartwaiver clients are using the Platform and Services; and (b) information related to the performance of the Platform or Services.

1.3. “Applicable Law” means all laws, rules, regulations, rulings, decrees, directives, or other requirements of any governmental authority, and all current industry self-regulatory principles that: (a) apply to the Platform or Services; (b) relate to the Parties’ rights and obligations in this Agreement; or (c) apply to the collection, processing, and storage of Personal Data.

1.4.“Beta Services” are Smartwaiver products and/or services, which are not generally available to the public or other Smartwaiver customers and offered on a trial basis, without charge.

1.5. "Customer Data" means all information transferred, stored, modified, communicated, or shared through your use of the Software, Platform, or Services, including all waivers submitted or stored in your Account, and any information or data relating to your or any of your Users, customers, service providers, employees, contractors, recipients, or agents generated, received, or otherwise made available through your use of the Software, Platform, or Services.

1.6. “Documentation” means the description of the Platform or Services, including any specifications, requirements, training guides or manuals, and any other information about installation, configuration, interoperability and use, including any updates thereto, as provided or made available by or on behalf of Smartwaiver.

1.7. “Intellectual Property Rights” means any: (a) trademarks, service marks, trade names, trade dress, and Internet domain names, together with all associated goodwill and common law rights; (b) patents; (c) copyrights; (d) registrations and applications for registration of any of the foregoing in (a)-(c); (e) trade secrets; and (f) rights of privacy and/or publicity; and all other forms of intellectual property or proprietary rights, and derivatives thereof.

1.8. “Personal Data” has the meaning set forth in the Data Processing Agreement.

1.9. “Personnel” means, with respect to each Party, their respective employees, Subcontractors, vendors, agents, officers, directors, and other persons and/or entities that may be engaged by such Party from time to time.

1.10. “Subscription Period” means the monthly or annual commitment for the Services that you selected when establishing your Account.

1.11. “Systems” means websites, mobile or tablet devices or sites, applications and other digital properties, services, platforms, software, servers, computers, hardware, firmware, middleware, networks, systems, workstations, data communications lines, routers, hubs, switches, magnetic, optical or electrical data storage devices, and all other information technology equipment. The Systems owned or controlled by you or your Affiliates are “Customer Systems”.

1.12. “Third-Party Applications” means online or mobile applications and any other online or offline software products that are provided by third parties, and that interoperate with, or purport to interoperate with, the Platform and/or Services.

2. SCOPE OF AGREEMENT.

2.1. License Grant. During the term of this Agreement, we hereby grant to you, a revocable, non-exclusive, worldwide, non-transferable, non-sublicensable (except to your Affiliates), license to access and use the Software as set forth in this Agreement. You may display, reproduce, modify, and distribute the Documentation to any users of the Software solely as necessary to facilitate your exercise of the licenses granted above.

2.2. Capacity; Use Limitations. Your Account (as defined below) is allocated a certain number of digital waivers, and certain levels of storage capacity and email, as described on the Site. Any unused digital waivers allocated in your selected plan do not carry over to the following Subscription Period. To view your current usage and/or storage allocations, log in to your Account. We reserve the right to modify these limitations on use at any time; provided, that, any reductions will not apply until the following Subscription Period.

2.3. Your Use of Platform and Services.

2.3.1. You will be granted access to the Platform and Services through an account (your “Account”) within seven business days following the Effective Date, to the extent that your Account has not been previously established. You may authorize designated employees within your organization to access the Platform and Services through your Account (each such individual, a “User” of your Account). You and each User will be provided with a user identification and will select a password (each such user identification and password, a “User ID”). Each User ID is personal in nature and may be used only by the applicable User.

2.3.2. You are solely responsible for all use of the Platform and Services through your Account, for the actions of each User of your Account, and for compliance by each User with the applicable terms of this Agreement. You agree to use commercially reasonable practices to protect the security and confidentiality of each User ID and agree to notify us immediately if any User ID is lost, stolen, or otherwise compromised. You acknowledge that you are fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified, or shared through use of each User ID, whether lawful or unlawful. You are solely responsible, at your own expense, for acquiring, installing, and maintaining all hardware, software, and other equipment as may be necessary for you and each User to connect to, access, and use the Platform and Services.

2.3.3. You acknowledge that the Platform, Services, Software, and the databases, hardware, and other technology used by or on behalf of Smartwaiver to provide the Platform and Services (collectively, the “Technology”) and their structure, organization, and underlying data, information, and source code constitute valuable trade secrets of Smartwaiver. You will not, and will not permit any third-party to: (a) access or use the Software, Platform, or Services, in whole or in part, except as expressly provided in this Agreement; (b) violate any Smartwaiver Policies; (c) use the Software, Platform, or Services in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Software, Platform, or Services; (d) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter Smartwaiver’s Systems or Technology; (e) interfere with, disrupt, or attempt to gain unauthorized access to the servers or networks connected to Smartwaiver’s Systems or Technology, or violate the regulations, policies, or procedures of such networks; (f) access, or attempt to access, the Platform or Services by means other than through the interface that is provided by us; (g) use automated scripts to collect information from or otherwise interact with the Software, Platform, or Services, except for the sole purpose of collecting and extracting Customer Data in compliance with your obligations set forth in this Agreement; (h) use the Platform or Services to intimidate or harass any other people or entities; (i) alter, modify, reproduce, create derivative works of any Technology; (j) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Software, Platform, or Services (except as otherwise provided for herein), including providing outsourcing, service bureau, hosting, application service provider or on­line services to third parties, or otherwise make the Software, Platform, or Services, or access thereto, available to any third-party; (k) use the Technology (i) for the benefit of a third-party, (ii) other than for your own internal business purposes, or (iii) to build a competitive product or service, including without limitation, internal tools; (l) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Software; (m) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Platform or Services; (n) interfere in any manner with the operation or hosting of the Software, Platform, or Services, or attempt to gain unauthorized access to the Software, Platform, or Services; (o) remove, obscure, or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Software, Platform, or Services; or (p) add data or files that are not directly related to Customer’s approved use of the Software, Platform, or Services. You will not allow any access to or use of the Software, Platform, or Services by anyone other than your authorized Users, and any such use will be consistent with the terms, conditions, and restrictions set forth in this Agreement.

2.3.4. You will be solely responsible for all Customer Data generated through your Account by any User or other third-party, or that we may receive, collect, or obtain through your use of the Platform or Services. You grant to Smartwaiver a limited, revocable, license in and to Customer Data throughout the United States while this Agreement is in effect for the sole purpose of providing the Services under this Agreement. As between you and Smartwaiver, you own and retains all rights in and to Customer Data and do not convey any proprietary interest therein to Smartwaiver other than the licenses set forth herein. You agree that none of Customer Data or the use of Customer Data: (a) violates this Agreement or any Applicable Laws; (b) is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitutes an infringement or misappropriation of the rights of any third-party; (d) is illegal or advocates illegal activity; (e) is an advertisement or solicitation of funds, goods, or services; (f) is false, misleading, or inaccurate; or (g) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. In addition, you acknowledge that if you or your Users grant access to Customer Data to any third-party through the Services, including without limitation, to providers of Third-Party Applications, you are solely responsible for all such access. We may take remedial action if any Customer Data violates this Agreement or Applicable Law, including deletion of Customer Data from the Platform or Services, provided that we are under no obligation to review any Customer Data for accuracy or potential liability. Nothing in this Section will be interpreted, or is intended, to limit your rights under Applicable Law to provide truthful, public statements about your experience with Smartwaiver or the Services.

2.4. Modifications to the Software; Updates. We reserve the right, at any time, to modify the Software, Platform, and Services, or any part thereof, subject to the terms of this Agreement, provided that any such modification does not materially diminish any core functionality. Additionally, we may automatically install Software Updates. We will deliver such Updates as part of the Services and you agree to receive and install such Updates as required.

2.5. Third-Party Applications. If you install or enable Third-Party Applications for use with the Platform and/or Services, you acknowledge that we have no responsibility for the interoperability of any such Third-Party Application with the Platform or Services, and that if any such Third-Party Application becomes inoperable, or causes all or any portion of the Platform or Services to become inoperable, we will no liability or obligation whatsoever to you therefor.

3. PRICING, PAYMENTS & INVOICES.

3.1 General. Pricing for the Services will be display on the Site and may be increased at any time in our sole discretion; provided, that pricing for the Services will not increase until your next renewal term. Your continued use of the Services after the effective date of any such pricing change will constitute your acceptance of such change. We will charge you subscription fees and any other additional fees you authorize to the payment method you designate when setting up your Account. You may update your payment method at any time via your Account. You authorize us to charge subscription fees automatically when you establish your Account and then again at the start of each renewal term. You authorize the card issuer to pay any amounts described in this Agreement and authorize us, or any other company that acts as our billing agent, to continue to attempt to charge all sums described in this Agreement to your designated payment method until such amounts are paid in full. You agree to provide us with updated information on your payment method upon our request and any time the information earlier provided is no longer valid. We will provide you with an electronic invoice to your email address on file anytime there is a charge to your Account. If you believe you have been billed in error, please notify us at support@smartwaiver.com within thirty (30) days of the billing date. You agree to (i) pay all undisputed fees, or (ii) dispute any such amounts, in each case within thirty (30) days of the date you receive an invoice. We reserve the right to charge you interest on any amounts more than sixty (60) days past due equal to the lesser of (a) 18% per annum, or (b) the maximum amount permitted to be charged by Applicable Law. We may seek pre-authorization of your debit or credit card account prior to a purchase to verify the card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations may reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have questions regarding when an authorization amount will be removed from your statement.

3.2. Taxes. If and to the extent any payments due by you are subject to any applicable value added, goods and services, sales, use, consumption, or other similar taxes imposed by a governmental authority (“Transaction Taxes”) arising from our performance of the Services for which you are liable under Applicable Law, we will charge and you agree to pay such Transaction Taxes; provided, that such Transaction Taxes are separately stated and identified by jurisdiction on a valid tax invoice that includes the Services that are subject to such tax. Notwithstanding the foregoing, we will not invoice you for Transaction Taxes where you provide us with a valid direct pay or exemption certificate for any such amounts.

3.3. Suspension of Service. If any undisputed amount owed by you under this Agreement is more than thirty (30) days past due (i.e., you have not paid such amounts within sixty (60) days of the due date, we may, without limiting our other rights and remedies under this Agreement and at law, suspend any and all of the Services to you until such amounts are paid in full. We will give you prior written notice before taking such action.

4. CONFIDENTIAL INFORMATION. “Confidential Information” is any information and materials disclosed or made available by or on behalf of one Party (“Discloser”), to the other Party or that the other Party (“Recipient”) obtains in connection with this Agreement that is designated as confidential or is reasonably expected to be confidential or proprietary. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to trade secrets, business, technical and financial information not generally known to the public, such as business plans, strategies, practices, products, and Personnel-related data; and for you, includes Customer Data and your Personal Data. Confidential Information does not include information that: (a) the Recipient rightfully possessed without a duty of confidentiality before obtaining it from the Discloser; (b) is or becomes generally available to and known by the public through no fault of the Recipient; (c) Recipient received on an unrestricted basis from a source other than either Party, and not under a duty of confidentiality; or (d) Recipient developed independently, without reference to any Confidential Information. Recipient’s obligations under this Section 4 regarding Discloser’s Confidential Information terminate two years after the expiration or termination of this Agreement, except that Recipient’s obligations survive (a) in perpetuity for backed up Personal Data; and (b) for Confidential Information that is a trade secret, for as long as such Confidential Information is a trade secret under Applicable Law.

4.1. Protection. Each Party will maintain in confidence and protect the other’s Confidential Information from any unauthorized disclosure, access, use, destruction, alteration, or loss, using at least the same standard of care it uses to protect its own Confidential Information, but no less than a reasonable degree of care.

4.2. Use and Disclosure. Except as expressly set forth in this Agreement, Recipient will not, and will not permit any person or entity to use, copy, or disclose Discloser’s Confidential Information to any person or entity other than (i) to Recipients’ Affiliates and authorized Personnel as strictly necessary for Recipient to perform or receive the Services or to comply with this Agreement or Applicable Law, or (ii) to legal counsel, accountants, banks, and other financing sources and advisors as strictly necessary for such parties to advise or perform services on behalf of Recipient (such persons, “Authorized Persons”). Recipient will ensure that its Authorized Persons with access to Discloser’s Confidential Information are bound by substantially similar confidentiality obligations no less restrictive than those set forth in this Section 4. Recipient will be liable to Discloser for the failure of Recipient’s Authorized Persons to comply with this Section 4 to the same extent that Recipient would have been had Recipient failed to comply. Nothing in this Section 4 will be interpreted to restrict the licenses or rights granted by or on behalf of Smartwaiver or its Personnel hereunder.

4.3. Required Disclosure. The Recipient will, to the extent not prohibited by Applicable Law (i) promptly notify the Discloser if any Applicable Law or a governmental authority of competent jurisdiction requires or requests such Party to disclose any of Discloser’s Confidential Information, and (ii) use reasonable efforts to allow the Discloser an opportunity to seek injunctive relief from, or a protective order with respect to, the contemplated disclosure, at Discloser’s expense. Recipient (i) may disclose only that portion of Discloser’s Confidential Information that Recipient’s counsel advises is not subject to privilege and must be disclosed, and (ii) will, at Discloser’s expense and to the extent not prohibited by Applicable Law, cooperate with Discloser to ensure the disclosed Confidential Information is treated in a confidential manner.

5. DATA AND SECURITY.

5.1. Data Processing. If, and only if, we process Personal Data on your behalf in the course of providing the Services, the Parties agree to comply with the terms of the Data Processing Addendum (“DPA”), which is hereby incorporated into this Agreement.

5.2. Security. To protect Personal Data and Customer Data, we will (a) implement and maintain administrative, technical, physical, and organizational safeguards regarding security, continuation, backup, and disaster-recovery that are consistent with industry standards and practices and comply with Applicable Law, and (b) only access and use Customer Systems to the extent necessary to perform the Services.

5.3. Usage Restrictions. Except as (i) expressly permitted under this Agreement or our Privacy Policy, (ii) requested or approved by you in writing (email to suffice), including in connection with any customer support matters, (iii) in order to provide or improve the Platform or Services, or access to or use of the Platform or Services, including to prevent or address any service or technical problems, (iv) in order to develop and test new features and services, or (v) as permitted or compelled under Applicable Law, we will not access or modify Personal Data or Customer Data, or disclose Personal Data or Customer Data to any third-party.

5.4 Use of Aggregated Anonymous Data. Notwithstanding anything in this Agreement to the contrary, we may (i) collect information to generate, and process, Aggregated Anonymous Data, and (ii) freely use and make available Aggregated Anonymous Data for the purpose of operating the Platform and marketing it to other customers (including without limitation, for purposes of improving, testing, operating, promoting, and marketing our current and future products and services). We are and will remain the sole and exclusive owner of all right, title and interest in and to all Aggregated Anonymous Data, including all Intellectual Property Rights related thereto, and may freely use all Aggregated Anonymous Data during the term of this Agreement and thereafter.

6. CUSTOMER DATA.

6.1. License. For the term of this Agreement, you hereby grant to us a non-exclusive, non-sublicensable, non-transferable, revokable, limited license in and to Customer Data, for the sole purpose of us providing Services under this Agreement. As between you and Smartwaiver, you own and retain all of your rights in and to Customer Data, and you do not convey any proprietary interest therein to Smartwaiver other than the licenses set forth herein.

6.2. Title and Non-Infringement. You represent and warrant to us that (i) you have all necessary right, title, interest, authorization, and consent necessary to allow us to access and use Customer Data for the purposes for which you provide Customer Data to us hereunder, including the transfer, storage, modification, communication, and processing of Customer Data, and (ii) that all Customer Data was lawfully acquired and its use hereunder does not and will not constitute an infringement, violation, or misappropriation of the rights of any third-party, including, without limitation, intellectual property rights.

7. INTELLECTUAL PROPERTY.

7.1. Smartwaiver’s Intellectual Property.

7.1.1. General. You understand and agree that the Software is licensed, not sold. Nothing in this Agreement conveys to you any rights of ownership in or related to the Software, Platform, or Services, or any Intellectual Property Rights therein, which may include, without limitation, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, generalized features of the structure, sequence, and organization of the Platform, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence, and methods of operation of Systems. Except as expressly set forth in this Agreement, Smartwaiver alone (and its licensors, where applicable) will retain all Intellectual Property Rights relating to the Software, Platform, and Services, including, without limitation, any modifications or enhancements thereto, or any derivatives thereof. For the avoidance of doubt, all licenses granted under this Agreement with respect to the Software will automatically terminate upon the termination or expiration of this Agreement.

7.1.2. Improvements. You understand and agree that we will be entitled to use and incorporate into the Platform and Services and any future products or services, for you as well as any of our other customers or future customers, any suggestions, enhancement requests, recommendations, or other feedback provided by you, Users or end-users, relating to the Platform or Services (“Improvements”), and we will have no obligations to you, Users, end-users or any third-party for any such use or incorporation. You agree to execute and deliver, or cause to be executed and delivered, to us such instruments and documents, and to take such other actions, as we, at our expense, may reasonably request for the purpose of evidencing, establishing, documenting, or otherwise supporting our Intellectual Property Rights in and to any such Improvements.

7.2. Customer’s Intellectual Property. You hereby grant to us a non-exclusive, non-transferable, revokable, royalty-free, limited license to use and display your name, trade name, service mark, logo, and other trademarks, solely for the purpose of facilitating your use of the Platform and Services as contemplated by this Agreement. As between us and you, you own all rights, title, and interest in and to any such names, trade names, service marks, logos, and other trademarks, as well as any other materials and information, which are provided by or on your behalf to us in connection with the Services hereunder. We will not use any such materials and information, in whole or in part, for any other purpose other than as required to provide the Platform and Services in accordance with the terms and conditions of this Agreement. This license will automatically terminate at the termination or expiration of this Agreement.

8. THIRD-PARTY CONTENT. We are a distributor and not a publisher of any content supplied by third parties and posted or made available on the Site or through the Services by third parties, including, without limitation, hyperlinks to other websites, resources, or information (“Third-Party Content”). Third-Party Content represents the opinions and judgments of a user or third party who created or posted such Third-Party Content. Any opinions, advice, statements, services, offers, or other information that constitute part of Third-Party Content expressed or made available by third parties, including by partners, sponsors, advertisers, service providers, licensors, or any other user of the Site or Services, are those of the respective authors or distributors and not of Smartwaiver, its Affiliates, or their respective officers, directors, employees, or agents. Neither Smartwaiver nor its Affiliates or any of their respective officers, directors, employees, or agents, guarantees the accuracy, completeness, or usefulness of any Third-Party Content, nor its merchantability or fitness for any particular purpose. Smartwaiver neither endorses nor, to the fullest extent permitted by Applicable Law, is responsible for any opinion, advice, or statement by anyone, including Smartwaiver employees. Under no circumstances will Smartwaiver, its Affiliates, or their respective officers, directors, employees, or agents be liable for any loss or damage caused by your or any third party’s use of or reliance on any Third-Party Content.

9. REPRESENTATIONS AND WARRANTIES.

9.1 Duly Authorized. Each Party represents and warrants that it (a) is duly organized and in good standing in the jurisdiction of its organization; and (b) has all requisite power and authority to execute, deliver, and enter into in this Agreement.

9.2. No Consents or Conflicts. Each Party represents and warrants that the execution, delivery and performance of this Agreement does not and will not (a) violate, conflict with or result in the breach of any provision of its charter, bylaws, or organizational documents; or (b) conflict with, result in a breach of, constitute a default of, require any consent under, or give any other person or entity a right to terminate, amend, accelerate, suspend, revoke or cancel any other agreement to which it is a party or by which it is bound.

9.3. Compliance with Applicable Law. Each Party will comply with all Applicable Laws relative to its performance under this Agreement. Notwithstanding the foregoing, we make no representation about, and waive all liability pertaining to, whether any particular signature or waiver executed on the Platform is enforceable under Applicable Law.

9.4. OFAC Certification. Each Party certifies that (a) it is not acting on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department, through its Office of Foreign Assets Control (“OFAC”) or otherwise, as a terrorist, “Specially Designated Nation”, “Blocked Person”, or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by OFAC or another department of the United States government, and (b) it is not engaged in this transaction on behalf of, or instigating or facilitating this transaction on behalf of, any such person, group, entity or nation.

9.5. Warranty Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, WE DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE FURTHER MAKE NO WARRANTY THAT: (A) THE SOFTWARE, PLATFORM, OR SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SOFTWARE, PLATFORM, OR SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE; AND (C) ANY PARTICULAR SIGNATURE OR WAIVER EXECUTED ON THE PLATFORM IS ENFORCEABLE UNDER IN THE JURISDICTION IN WHICH YOU OPERATE. ALTHOUGH WE MAY FROM TIME TO TIME PROVIDE YOU WITH STANDARDIZED DIGITAL WAIVERS OF LIABILITY FOR YOU TO USE, THE LAWS REGARDING WAIVERS OF LIABILITY VARY FROM STATE TO STATE. WE ARE NOT A PROVIDER OF LEGAL SERVICES OR LEGAL ADVICE AND IT IS IMPORTANT THAT YOU CONSULT WITH YOUR OWN LAWYER TO DETERMINE THE LEGAL ENFORCEABILITY OF THE WAIVER OF LIABILITY FORM THAT YOU CHOOSE TO USE. IN PARTICULAR, YOU, NOT US, IS RESPONSIBLE FOR DETERMINING THE ENFORCEABILITY OF ANY DIGITAL WAIVERS OF LIABILITY, INCLUDING A WAIVER’S COMPLIANCE WITH THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (ESIGN, PUB. L. NO. 106-229, 14 STAT. 464, 15 U.S.C. CH. 96) AND THE UNIFORM ELECTRONIC TRANSACTIONS ACT (UETA) AS THE UETA MAY BE ADOPTED IN YOUR STATE. AS PART OF THE SERVICES, CUSTOMER DATA WILL BE STORED IN THE WAIVERVAULT^™ FOR SO LONG AS YOUR ACCOUNT IS ACTIVE. WAIVERVAULT^™ UTILIZES THIRD PARTY STORAGE WITH SEVERAL REDUNDANT BACKUPS. ALTHOUGH THE POSSIBILITY OF DATA LOSS, LEAKAGE, OR CORRUPTION DUE TO STORAGE REDUNDANCY IS LIMITED, WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT ANY DATA OR INFORMATION YOU MAY STORE OR ACCESS THROUGH THE SERVICES WILL BE PROTECTED FROM DAMAGE, CORRUPTION, OR LOSS DUE TO THE ACTS OF THIRD PARTIES, INCLUDING MALICIOUS ACTS, BEYOND OUR CONTROL.

9.6. Beta Services. From time to time, we may invite you to try Beta Services. You may accept or decline to try any Beta Services at your sole discretion. Any Beta Services will be clearly designated as 'beta', 'pilot', 'limited release', 'developer preview', 'non-production' or with a description of similar import. Beta Services are provided for evaluation purposes only and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED PART OF THE SOFTWARE, PLATFORM, OR SERVICES DELIVERED UNDER THIS AGREEMENT AND ARE PROVIDED "AS IS", WITH NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND OR NATURE WHATSOEVER. We may, in our sole discretion: (a) discontinue any Beta Services at any time; (b) decide not to make any Beta Services generally available; and (c) make changes to any Beta Services prior to releasing them to the public and/or other Smartwaiver customers.

10. INDEMNIFICATION.

10.1. Indemnification by Smartwaiver. We will defend, indemnify, and hold harmless you, your Affiliates, and your and their respective officers, directors, employees, agents, successors, and assigns from and against any and all liabilities, losses, claims, damages, costs, and expenses as incurred, including reasonable attorneys’ fees and any applicable fines or penalties (collectively, “Losses”) against third-party claims (each, a “Claim”) that (a) the Software or Platform infringes, misappropriates or otherwise violates or conflicts with Applicable Law or such third-party’s Intellectual Property Rights; (b) our breach of our obligations under Section 5 of this Agreement, and (c) we breached our representations or warranties in this Agreement or failed to comply Applicable Law. Notwithstanding anything in this Agreement to the contrary, you understand and agree that we (nor our Affiliates or our or their respective officers, directors, employees, or agents) will have no liability or obligation whatsoever to you (nor your Affiliates or your or their respective officers, directors, employees, or agents) under this Section 10.1 or otherwise with respect to any Claim based upon or resulting from: (i) any use of the Platform or Services not strictly in accordance with the terms of this Agreement or the Documentation; (ii) alterations, combinations, or enhancements of the Platform or Services not created by us, including without limitation, the use of any Third-Party Applications; (iii) any portion of the Platform or Services specific to you, or which implements any specific requirements requested by you; (iv) your use of any prior, unsupported versions of the Software, after being provided with updated versions thereto; or (v) any Intellectual Property Right in which you or any of your Affiliates have an interest (each, an “Uncovered Use”).

10.2. Indemnification by Customer. You will defend, indemnify, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, agents, successors, and assigns from and against any and all Losses as incurred, against Claims: (a) that the Customer Data infringes, misappropriates or otherwise violates or conflicts with Applicable Law or such third-party’s Intellectual Property Rights; (b) relating to any Customer Data submitted, posted, transmitted, or otherwise made available through the Platform or Services or any signature or waiver processed through the Services; and (c) that you breached your representations or warranties in this Agreement or failed to comply with Applicable Law.

10.3. Indemnification Procedure. The party seeking indemnification under this Agreement (the “Indemnitee”) will provide the other party (the “Indemnitor”) with prompt notice of any Claim for which it believes it is entitled to indemnification. The Indemnitor will immediately take control of the defense and investigation of such Claim and will employ counsel approved by the Indemnitee, such approval not to be unreasonably withheld, conditioned, or delayed, to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor may not settle the Claim on any terms or in any manner without Indemnitee’s prior written consent.

10.4. Infringing Materials. If the Software or Platform, or any part thereof, are held by a court of competent jurisdiction to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or we determine in good faith that such use of the Software or Platform may infringe upon any third-party Intellectual Property Rights, we will use commercially reasonable efforts to either (a) replace or modify any allegedly infringing or misappropriating materials with functionally equivalent, non-infringing, and non-misappropriating materials, or (b) obtain a license for you and licensees under this Agreement to continue using, receiving, and otherwise exercising their rights in and to any allegedly infringing or misappropriating materials, all subject to and in accordance with the terms of this Agreement (collectively, the “Corrective Solutions”). If we are unsuccessful with such Corrective Solutions or deem them impracticable, in our sole discretion, we will have the right to terminate this Agreement and relieve both Parties of further rights and obligations under this Agreement, and we will provide a refund to you of all amounts you paid to us in the six months (or number of months this Agreement has been in effect if less than six) prior to such termination. The Parties agree that, except for our obligations under Section 10.1(a), the Corrective Solutions will be Customer’s sole remedy with respect to such infringement. This Section 10.4 will not apply to the extent such infringement, violation, or misappropriation arises, in whole or in part, from any Uncovered Use.

11. EXCLUSION OF DAMAGES; LIMITATIONS ON LIABILITY.

11.1. Exclusion of Damages. NEITHER PARTY, NOR ITS AFFILIATES, NOR ITS OR THEIR PERSONNEL, PARTNERS, SHAREHOLDERS, SUCCESSORS, OR ASSIGNS WILL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11.2. Limitations on Liability. EXCEPT WITH RESPECT TO YOUR PAYMENT OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ANY TAX OBLIGATIONS) OR YOUR BREACH OF SECTION 2.3.3 OR SECTION 2.3.4, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE TO US DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE ACTION. THE FOREGOING AGGREGATE LIABILITY CAP WILL NOT APPLY WITH RESPECT TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR (B) LOSSES OR DAMAGES CAUSED BY A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL OR DELIBERATE ACT OR OMISSION, BOTH OF WHICH WILL BE CAPPED AT $50,000. THE FOREGOING LIMITATIONS REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.

12. TERM; TERMINATION.

12.1. Term. This Agreement is effective as of the Effective Date and auto-renews at the end of each Subscription Period, with each successive term matching the length of the Subscription Period, unless earlier terminated in accordance with this Agreement. Notwithstanding the foregoing, you may terminate this Agreement by providing notice at least thirty (30) days’ prior to the start of the next renewal.

12.2. Termination Rights.

12.2.1. Termination for Breach. Either Party may terminate this Agreement (a) immediately upon written notice (describing such breach in reasonable detail including documenting the reason the non-breaching Party believes the breach is not capable of cure) to the breaching Party if the breaching Party breaches its obligations set forth in this Agreement and such breach is non-curable, or (b) thirty (30) business days following breaching Party’s receipt of notice (describing such breach in reasonable detail so as to allow the breaching Party to cure such breach) that it has breached this Agreement if such breaching Party has not cured such breach within the thirty (30) business day period.

12.2.2. Termination for Bankruptcy. Either Party may terminate this Agreement at any time by providing notice of termination to the other Party if such Party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

12.3. Smartwaiver Termination Rights. We may terminate this Agreement if: (a) you fail to pay, by the applicable payment due date, the undisputed portion of an invoice, or breach your confidentiality obligations under this Agreement; (b) we have notified you in writing of such non-payment or breach and, in such notification, have stated our intent to terminate this Agreement, and (c) such non-payment or breach has not been cured within thirty (30) days of your receipt of such notice, in which case this Agreement will terminate upon expiration of such thirty (30) day period.

12.4. Effect of Termination. Upon termination of this Agreement, we will cease all Services and, if you terminate this Agreement for breach, you will be entitled to a pro rata refund of any pre-paid amounts and will be released from any future payment obligations for the Services for the remainder of the then-current term or renewal term. In all other cases, you will not be entitled to a return of any pre-paid amounts and will not be released from any future payment obligations for the Services until the expiration of the then-current term or renewal term. Additionally, we will make the Customer Data available for download for a period of thirty (30) days after the date of termination. At the end of such thirty (30)-day period, we will have the right to delete all information and data stored in or as a part of your Account including, but not limited to, all Customer Data unless you request in writing for the information and data stored to be retained at a negotiated cost. Any individual components of the Services that you may have used subject to separate software license agreements (e.g., kiosk software) will also be terminated in accordance with those license agreements.

12.5. Survival. All sections of this Agreement, which by their nature should survive the termination or expiration of this Agreement, will so survive, subject to any survival periods specified in those sections.

13. GENERAL PROVISIONS.

13.1. Notices. Notices to Smartwaiver must be sent to jim@smartwaiver.com with a copy to legal@togetherwork.com. Notices to you will be sent to the primary email address associated with your Account. Notices will be deemed received on the next business day after being sent.

13.2. Assignment. Neither Party may assign, delegate, or otherwise transfer any of its rights, remedies, or obligations set forth in this Agreement without the other Party’s prior written consent, not to be unreasonably withheld; provided, however, that we may assign without your consent our rights, remedies, and obligations to any successor to all or substantially all of our business that concerns this Agreement (whether by sale of stock or assets, merger, reorganization, consolidation, or otherwise). This Agreement binds and inures to the benefit of the Parties and their respective successors and permitted assigns.

13.3. Third-Party Beneficiaries. Except as expressly provided herein, this Agreement (i) is entered into by and between, and may be enforced only by, the Parties hereto, and (ii) will not be deemed to (A) create any rights in third parties (other than the Parties’ permitted successors and assigns and any persons or entities expressly entitled to indemnity hereunder), including without limitation, a Party’s Affiliates and their respective officers, directors, employees, and agents, or (B) create any obligations of a Party (nor its Affiliates or their respective officers, directors, employees, or agents) to any such third parties.

13.4. Disputes Between the Parties. Subject to Section 4, all claims or disputes between the Parties, whether in contract, tort, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement (each, a “Dispute”) will be resolved solely in accordance with the terms of this Section. In the event of a Dispute, the Parties hereby agree that (i) both Parties will first attempt, in good faith, to resolve such Dispute through direct negotiation for at least thirty (30) days following the disputing Party’s giving of notice to the other Party as provided in Section 13.1, and (ii) in the event a Dispute cannot be resolved during that time period, each Party hereby agrees and covenants that it will submit to mediation under a mutually agreeable certified and impartial mediator located in the State of Delaware. In the event of mediation, each Party will bear its own costs of such mediation, including its own attorney’s fees and its equal share of mediator fees. The Parties and their Personnel will hold the existence, content, and results of the mediation in confidence. The mediator will not consider punitive damages. In the event the Dispute is not resolved in said mediation, the Parties agree to submit to binding arbitration before a single arbitrator in the State of Delaware in accordance with the Streamlined Arbitration Rules and Procedures of JAMS, which will administer the arbitration. In the event of arbitration, each Party will bear its own costs of such arbitration, including its own attorney’s fees and its equal share of arbiter fees. The Parties and their Personnel will hold the existence, content, and results of the arbitration in confidence. The arbiter will not consider punitive damages. The arbiter does not have the authority to alter or modify the terms of this Agreement. Notwithstanding the foregoing, each Party reserves the right to seek an injunction or other equitable relief in court to prevent or stop a breach of this Agreement or a violation of rights either Party has under law, at its own expense, including attorney’s fees.

13.5. Governing Law; Venue; Jurisdiction. This Agreement is governed and construed in accordance with applicable United States federal law and the laws of the State of Delaware, without regard to conflict of laws principles. The Parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of the State of Delaware for any claim, suit, action, proceeding, or other form of litigation of any kind (“Action”) arising out of or relating to this Agreement or the negotiation, validity, or performance of this Agreement.

13.6. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.

13.7. Statute of Limitations. No Action, regardless of form, may be brought or asserted by one Party (nor its Affiliates or their respective officers, directors, employees, or agents) against the other Party (nor its Affiliates or their respective officers, directors, employees, or agents) under this Agreement more than one year after the cause of such Action became known to the potential claimant or should have been known to the claimant based on the surrounding circumstances.

13.8. Counterparts. Any agreement made in connection with this Agreement may be executed in any number of counterparts, all of which taken together will constitute one agreement between the Parties.

13.9. Entire Agreement; Conflict. This Agreement (including any agreements, policies, schedules, or exhibits incorporated by reference) constitutes the entire agreement regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous agreements, proposals, quotes, understandings, and communications, whether written or oral. If any provision in the foregoing agreements conflicts, expands, or limits any provision in this Agreement, this Agreement governs to the extent of such inconsistency. Only those provisions of this Agreement that expressly allow for modification may be modified and only if the specific section number of this Agreement is identified in the modifying agreement.

13.10. Force Majeure. Neither Party will be liable for any default or delay in the performance of its obligations under this Agreement to the extent an unforeseeable event including a natural disaster, act of God, pandemic, epidemic, fire, act of war or terrorism, riot, acts of civil or military authority, other similar unforeseeable occurrence beyond its reasonable control, or any related governmental or judicial or other third-party actions taken in connection with, or as a response to the event (a “Force Majeure Event”), that makes it impossible for a Party to perform or comply with its obligations; provided, that the affected Party make all reasonable efforts to comply with its obligations despite the occurrence and, as soon as reasonably practicable, notifies the other Party of the occurrence and its expected duration and impact on the affected Party’s performance. Notwithstanding anything in this Section to the contrary, you will not be relieved of any payment obligations as a result of a Force Majeure Event, so long as the were Services delivered or made available.

13.11. Construction. The words “including,” “include,” and “includes” are not limiting and are to be read as not limiting the generality of the proceeding subject matter. “Reasonable efforts” means, with respect to a given obligation, the efforts that a reasonable and prudent person would use in similar circumstances to perform the obligations as promptly as possible, consistent with its normal business practices and good-faith business judgment, including the incurrence of reasonable expenditures or liabilities. All amounts due hereunder and thereunder, including with respect to indemnification obligations, will be paid in U.S. dollars.

13.12. Relationship of the Parties. The relationship of the Parties is as independent contractors. Nothing in this Agreement will create or be deemed to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party will retain responsibility for and control over all aspects of its relationship with its respective customers and its own Personnel, business, products, and services.

13.13. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law and the remaining provisions of this Agreement will remain in effect.

13.14. Waiver. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party against whom it is to be enforced.

13.15. HIPAA Addendum. If, and only if, you handle electronic protected health information subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the HIPAA Addendum will apply.