SW Development LLC TERMS OF SERVICE
1. Your Acceptance of Terms
Welcome to Smartwaiver Digital Waivers
The following Terms of Service (“TOS”) are between you and SW Development LLC and constitute a legal agreement that governs your use of the Smartwaiver product, software, services and website, as more fully described at Smartwaiver (collectively referred to as the “Service”). You must agree to these TOS before you can use the Service. You can agree to these TOS by: (a) actually using the Service, or (b) clicking a box that indicates you agree to the Service, where such a box is made available to you. If you do not agree to any of the following terms, you may not use the Service. You should print or otherwise save a copy of these TOS for your records. “SW Development LLC” as used herein means SW Development LLC., located at 869 NW Wall Street Suite 201, Bend, OR 97701.
To use and/or register for the Service you must be: (a) of legal age to form a binding contract with SW Development LLC, (b) having the mental and legal capacity to form a binding contract and (c) cannot be a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction, including the country in which you reside or from where you use the Service. By accepting these TOS you represent that you understand and agree to the foregoing.
SW Development LLC may update or change these TOS from time to time and recommends that you review the TOS on a regular basis. You can review the most current version of the TOS at any time. If SW Development LLC makes a change to the TOS, it will post the revised TOS on our website at the link as herein noted. You understand and agree that your continued use of the Service after the TOS has changed constitutes your acceptance of the TOS as revised. Without limiting the foregoing, if SW Development LLC makes a change to the TOS that materially impacts your use of the Service, SW Development LLC may post notice of any such change on our website and/or email you notice of any such change to your Smartwaiver account.
2. Description of the Service
Use of the Service requires one or more compatible devices, certain software and internet access with compatible ISP (broadband required for web applications); separate fees may apply. SW Development LLC does not sell any hardware or fixtures. Your use of the Service may be affected by certain combinations of hardware, software and/or internet access. High speed internet access is strongly recommended. For a complete list of recommended hardware, please visit the Smartwaiver website.
Changing the Service
SW Development LLC reserves the right to modify or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. Without limiting the foregoing, SW Development LLC may post on our website and/or send email to your Smartwaiver account, notice of such changes to the Service. It is your responsibility to review our website and/or check your email address provided to SW Development LLC for any such notices. You agree that SW Development LLC shall not be liable to you or any third party for any modification or cessation of the Service.
Limitations on Use
You agree to use the Service only for purposes as permitted by these TOS and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. Your Smartwaiver account is allocated certain numbers of digital waivers, and certain levels of storage capacity and email as described in the Smartwaiver feature pages. Any unused digital waivers allocated in your selected monthly plan do not carry over to the following month. To view your current usage and/or storage allocations, log in to your Smartwaiver account page. SW Development LLC reserves the right to modify these limitations on use at any time.
Completed waivers will be stored for paying customers at any level of service for as long as their account remains current. If you terminate your paid account, your waivers will be automatically deleted thirty days after your account is terminated.
Availability of the Service
The Service, or any feature or part thereof, may not be available in all languages or in all countries and SW Development LLC makes no representation that the Service, or any feature or part thereof, is appropriate or available for use in any particular location. To the extent you choose to access and use the Service, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, any applicable local laws.
3. Your Use of the Service
When you accept these TOS and complete the Smartwaiver sign up process, you become the Smartwaiver “Member Account” holder. You are required to select a unique name upon sign up that will be used for your account (your “Member ID”). You are responsible for all activity that takes place on your Member Account.
Upon creating your Member ID you will be required to select a password. Please choose a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur under your Member ID. If you suspect or become aware of any unauthorized use of your account please contact Smartwaiver Customer Support. You further acknowledge and agree that the Service is designed and intended only for the use of the Member opening an account and you should not share your account and/or password details with another individual or entity. You allowing anyone other than the subscriber to access your Member Account (other than your authorized employees or SW Development LLC) is a violation of these TOS and grounds for immediate termination or suspension of your account without refund.
Sign Up Obligations
You agree that all information you provide to SW Development LLC during the sign up process (“Sign Up Data”) will be true, accurate, complete and current information, and that you shall maintain and update the Sign Up Data as needed throughout your term to keep it accurate and current. Failure to provide accurate, current and complete Sign Up Data may result in the suspension and/or termination of your account.
Nothing in these TOS shall be construed to convey to you any interest, title, or license in a Member ID, email address, domain name, intellectual property of SW Development LLC or similar resource used by you in connection with the Service.
No Right of Survivorship
You agree that any rights to your Member ID or Content within your account terminate upon your death, or the dissolution, sale or bankruptcy of the Member if an entity. Upon receipt of a copy of a death certificate your account may be terminated and all Content within your account deleted after thirty days of such notice or returned to you. Contact support at for further assistance. In the event of a sale or transfer of the Subscriber, the Subscriber's Content will remain stored in the WaiverVault so long as the transferee keeps the existing Membership Account current.
No Resale of Service
You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Service (or any part thereof) for any purpose.
Use of Location-based Services
5. Content and Your Conduct
“Content” means any information that may be generated or encountered through use of the Service, such as data files, written text, software, graphics, photographs, images, sounds, videos, and any other like materials. You understand that all Content whether publicly posted or privately transmitted on the Service is the sole responsibility of the person from whom such Content originated. This means that you, and not SW Development LLC, are solely responsible for any Content you upload, download, post, email, transmit, store or otherwise make available through your use of the Service. SW Development LLC does not control the Content posted via the Service, nor does it guarantee the accuracy, integrity or quality of such Content. You understand and agree that your use of the Service and any Content is solely at your own risk.
You agree that you will NOT use the Service to:
A. upload, download, post, email, transmit, store or otherwise make available any Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous,abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;
B. stalk, harass, threaten or harm another;
C. if you are an adult, request personal or other information from a minor (any person under the age of 18 or such other age as local law defines as a minor) who is not personally known to you, including but not limited to any of the following: full name or last name, home address, zip/postal code, telephone number, picture, or the names of the minor's school, church, athletic team or friends;
D. pretend to be anyone, or any entity, you are not — you may not impersonate or misrepresent yourself as another person (including celebrities), entity, another Smartwaiver subscriber, an SW Development LLC employee, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity, (SW Development LLC reserves the right to reject or block any Member ID which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity);
E. engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
F. upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
G. interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon);
H. plan or engage in any illegal activity; and/or
I. gather and store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited activities.
Removal of Content
You acknowledge that SW Development LLC is not responsible or liable in any way for any Content provided by others and has no duty to pre-screen such Content. However, SW Development LLC reserves the right at all times to determine whether Content is appropriate and in compliance with these TOS, and may pre-screen, move, refuse, modify and/or remove Content at any time, without prior notice and in its sole discretion, if such Content is found to be in violation of these TOS or is otherwise objectionable.
Backup Of Your Content
As part of the Service, your Content will be stored in the WaiverVaultTM for so long as your account is not terminated.. The WaiverVault utilizes third party storage with several redundant backups. Although the possibility of data loss or corruption due to storage redundancy is very small, SW Development LLC cannot guarantee or warrant that any content you may store or access through the service will not be subject to inadvertent damage, corruption or loss due to the acts of third parties beyond the control of SW Development LLC. Such force majeure acts include, but are not limited to, acts of terrorism, nuclear war and acts of God.
Access to Your Account and Content
You acknowledge and agree that SW Development LLC may access, use, preserve and/or disclose your account information and Content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these TOS, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of SW Development LLC, its users or the public as required or permitted by law.
Copyright Notice - DMCA
If you believe that any Content in which you claim copyright has been infringed by anyone using the Service, contact SW Development LLC.
You agree to pay all fees and charges specified when you signed up for the Service and any part thereof. All fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Service.
Credit Card Authorization
You may be asked to provide SW Development LLC with a credit card number from a card issuer that we accept in order to activate and/or pay for any fees related to the Service. SW Development LLC may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will 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 additional questions regarding when an authorization amount will be removed from your statement.
SW Development LLC will charge the monthly subscription fees and any other additional fees you authorize to the charge or credit card account provided by you. By authorizing SW Development LLC to charge a credit card for the fees associated with your subscription, you are authorizing SW Development LLC to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer, and the issuer informs SW Development LLC of the new replacement card account) for all fees or charges associated with your subscription including any renewal fees as described below. You authorize the card issuer to pay any amounts described herein and authorize SW Development LLC, or any other company that acts as a billing agent for SW Development LLC, to continue to attempt to charge all sums described herein to your credit card account until such amounts are paid in full. You agree to provide SW Development LLC updated information on your credit card upon SW Development LLC’s request and any time the information earlier provided is no longer valid. If payment is not received by SW Development LLC from your credit card issuer or its agents, you agree to pay all amounts due upon demand by SW Development LLC.
Automatic Renewal of Subscription
When you sign up online for the Service, your monthly subscription will be set to automatically renew each month. This means that unless you cancel your account or change its renewal settings prior to its expiration, your account will automatically renew for another month. At the time of renewal, we will charge your credit card the then-current fees to renew the Service. You may change your renewal settings to another plan at any time by going to Sign up.
Account Information and Billing Inquiries
You may consult your Smartwaiver account management page for details on your account information including payment method and billing. SW Development LLC shall send an electronic invoice to your Smartwaiver email address whenever any Service fees are charged to your account. If you believe you have been billed in error for the Service please notify us within 45 days of the billing date by contacting Smartwaiver Support
Cancellations and Refunds
All fees and charges paid by you in relation to the Service are nonrefundable, except as otherwise stated herein. SW Development LLC shall refund the applicable fees paid by you upon initial online sign up or renewal of the Service provided SW Development LLC receives such refund request within forty-five (45) days of the billing date for any such fees. To request a refund as described herein go to Smartwaiver. Applicable local law may vary this policy.
Changes in Price
SW Development LLC may at any time, upon notice required by applicable law, change the price of the Service or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your subscription term will apply to subsequent subscription terms and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.
7. Content Submitted or Made Available by You on the Service
License from You
Except for material we may license to you, SW Development LLC does not claim ownership of the materials and/or Content you submit or make available on the Service.
Changes to Content
You understand that in order to provide the Service and make your Content available thereon, SW Development LLC may transmit your Content across various public networks, in various media, and modify or change your Content to comply with technical requirements of connecting networks or devices. You agree that the license herein permits SW Development LLC to take any such actions.
8. Trademark Information
SW Development LLC, the SW Development LLC logo, Smartwaiver, the Smartwaiver logo and other SW Development LLC trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of SW Development LLC Inc. in the US and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Service.
SW Development LLC’s Proprietary Rights
You acknowledge and agree that SW Development LLC and/or its licensors own all legal right, title and interest in and to the Service, and any software provided to you as a part of and/or in connection with the Service (the “Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Service (including the Software, or any other part thereof) contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
License From SW Development LLC
SW Development LLC grants you a personal, non-exclusive, non-transferable, limited license to use the Software as provided to you by SW Development LLC as a part of the Service and in accordance with these TOS; provided that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the Software.
Use of the Service and Software, including transferring, posting, or uploading data, software or other Content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software or Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software or Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You further agree not to upload to your Smartwaiver account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.
As part of the Service, you may from time to time receive updates to the Software from SW Development LLC which may be automatically downloaded and installed to your device. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the Software. You agree that SW Development LLC may automatically deliver such updates to you as part of the Service and you shall receive and install them as required.
Termination by You
You may terminate your account and/or stop using the Service at any time. To terminate your account contact Smartwaiver Support. Any fees paid by you prior to your termination are nonrefundable (except as expressly permitted otherwise by these TOS), including any fees paid in advance for the term during which you terminate. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
Termination by SW Development LLC
SW Development LLC may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Cause for such termination shall include, but not be limited to: (a) violations of the TOS or any other policies or guidelines that are referenced herein and/or posted on the Service; (b) a request by you to cancel or terminate your account; (c) discontinuance or material modification to the Service or any part thereof; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (e) where provision of the Service to you is or may become unlawful; (f) unexpected technical or security issues or problems; (g) your participation in fraudulent or illegal activities; or (h) failure to pay any fees owed by you in relation to the Service. Any such termination or suspension shall be made by SW Development LLC in its sole discretion, without any refund to you of any prepaid fees or amounts, and SW Development LLC will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.
Effects of Termination
Upon termination of your account by you or us other than for a material breach of these TOS, SW Development LLC will make your Content available for download by you within 30 days from the date of termination. At the end of the period selected by you herein, SW Development LLC shall delete all information and data stored in or as a part of your account(s) including, but not limited to, data files and Content. Any individual components of the Service 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.
In the event that you are terminated for a material breach of these TOS, SW Development LLC will make your Content available for download by you within 30 days from the date of termination. After thirty days from the date of the termination of your account, any Content stored for you by SW Development LLC will be automatically deleted.
11. Links and Other Third Party Materials
Certain Content, components or features of the Service may include materials from third parties and/or hyperlinks to other web sites, resources or Content. Because SW Development LLC may have no control over such third party sites and/or materials, you acknowledge and agree that SW Development LLC is not responsible for the availability of such sites or resources, and does not endorse or warrant the accuracy of any such sites or resources, and shall in no way be liable or responsible for any Content, advertising, products or materials on or available from such sites or resources. You further acknowledge and agree that SW Development LLC shall not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such Content, advertising, products or materials on or available from such sites or resources.
12. Disclaimer of Warranties
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SW Development LLC AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, SW Development LLC AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SW Development LLC OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
SW Development LLC MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE, ENFORCEABLE OR AVAILABLE FOR USE IN YOUR JURISDICTION. THOSE WHO ACCESS OR USE THE SERVICE DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW. USERS OF THE SERVICE AND MEMBERS ARE ADVISED TO SEEK AND ARE SOLELY RESPONSIBLE SEEKING LEGAL ADVICE FROM AN ATTORNEY LICENSED IN YOUR JURISDICTION REGARDING THE ENFORCEABILITY OF DIGITAL WAIVERS, COMPLIANCE WITH ANY SPECIFIC REQUIREMENTS REGARDING DIGITAL SIGNATURES IN YOUR JURISDICTION AND COMPLIANCE WITH THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, 15 U.S.C. § 7001 ET SEQ.
13. Limitation of Liability
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SW Development LLC AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF SW Development LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE (II) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
You agree to defend, indemnify and hold SW Development LLC, its affiliates, subsidiaries, directors, officers, members, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any Content you submit, post, transmit, or otherwise make available through the Service; (b) your use of the Service; (c) any violation by you of these TOS; or (d) your violation of any rights of another. This obligation shall survive the termination or expiration of these TOS and/or your use of the Service. You acknowledge that you are responsible for all use of the Service using your account, and that these TOS apply to any and all usage of your account. You agree to comply with these TOS and to defend, indemnify and hold harmless SW Development LLC from and against any and all claims and demands arising from usage of your account, whether or not such usage is expressly authorized by you.
Although SW Development LLC 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. SW Development LLC is 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 use. In particular, you, not SW Development LLC, are responsible for determining the legal enforceability of any digital waivers of liability, including its 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. You further agree, in addition to any other provisions contained herein, and without limiting the scope of any other provision herein, to hold SW Development LLC, its parents, subsidiaries, affiliates, agents, officers, directors, members, employees, successors and assigns, harmless from any claim or demand, including reasonable attorneys' fees and costs, that may arise in connection with your use of the digital waiver service and storage of digital waivers.
SW Development LLC may provide you with notices regarding the Service, including changes to these TOS, by email to your email address provided, by regular mail, or by postings on our website and/or the Service. It is your responsibility to ensure that SW Development LLC has your current, active email address on file.
16. Governing Law
Except to the extent expressly provided in the following paragraph, these TOS and the relationship between you and SW Development LLC shall be governed by the laws of the State of Oregon, excluding its conflicts of law provisions. You and SW Development LLC agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Deschutes, Oregon, to resolve any dispute or claim arising from these TOS. Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
These TOS constitute the entire agreement between you and SW Development LLC, govern your use of the Service and completely replace any prior or contemporaneous agreements between you and SW Development LLC in relation to the Service. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these TOS is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of SW Development LLC to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these TOS, there shall be no third-party beneficiaries to this agreement. Any translation of these TOS is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of these TOS shall govern. In the event that any action is commenced arising out of these TOS, the prevailing party shall be awarded it’s reasonable attorney’s fees.
We and our affiliates will not be liable for any delay or failure to perform any obligation to you where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Statute of Limitations
You agree that notwithstanding any state statutes of limitations to the contrary, which are expressly waived by you, any claim or cause of action arising out of or related to these TOS or the use of the Service must be filed within one (1) year after the cause of action arose or be forever barred.
18. HIPAA COMPLIANCE TERMS
Some clients handle electronic protected health information subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The following terms apply to Smartwaiver’s obligations regarding electronic protected health information stored by the client with Smartwaiver.
The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
(a) Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Smartwaiver, Inc.
(b) Covered Entity. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the Smartwaiver client subject to HIPAA.
(c)HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Obligations and Activities of Business Associate
Business Associate agrees to:
(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;
(c) Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware. The covered entity agrees to notify any affected patient and government agency as required;
(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information;
(e) Make available protected health information in a designated record set to the covered entity as necessary to satisfy covered entity’s obligations under 45 CFR 164.524. In the event that the business associate receives a request for access directly from the individual rather than the covered entity, the business associate will respond to a request for access by forwarding the individual’s request to the covered entity to fulfill. The covered entity has sole responsibility for handling requests for HIPAA information from individual clients of the covered entity.
(f) Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity’s obligations under 45 CFR 164.526;
(g) Maintain and make available the information required to provide an accounting of disclosures to the covered entity as necessary to satisfy covered entity’s obligations under 45 CFR 164.528. The business associate will respond to a request for an accounting of disclosures that the business associate receives directly from the individual client of the covered entity by forwarding the request to the covered entity;
(h) To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and
(i) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
Permitted Uses and Disclosures by Business Associate
(a) Business associate may only use or disclose protected health information as referenced in these TOS as necessary to perform the services set forth in the TOS. In addition to other permissible purposes, the parties should specify whether the business associate is authorized to use protected health information to de-identify the information in accordance with 45 CFR 164.514(a)-(c).
(b) Business associate may use or disclose protected health information as required by law.
(c) Business associate agrees to make uses and disclosures and requests for protected health information consistent with covered entity’s minimum necessary policies and procedures.
(d) Business associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by covered entity except for the specific uses and disclosures set forth below.
(e) Business associate may use protected health information for the proper management and administration of the business associate or to carry out the legal responsibilities of the business associate.
(f) Business associate may disclose protected health information for the proper management and administration of business associate or to carry out the legal responsibilities of the business associate, provided the disclosures are required by law, or business associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies business associate of any instances of which it is aware in which the confidentiality of the information has been breached.
(g) Business associate may provide data aggregation services relating to the health care operations of the covered entity.
Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions
(a) Covered entity shall notify business associate of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect business associate’s use or disclosure of protected health information.
(b) Covered entity shall notify business associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect business associate’s use or disclosure of protected health information.
(c) Covered entity shall notify business associate of any restriction on the use or disclosure of protected health information that covered entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect business associate’s use or disclosure of protected health information.
Permissible Requests by Covered Entity
Covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity, except that business associate may use or disclose protected health information for, and the agreement includes provisions for, data aggregation or management and administration and legal responsibilities of the business associate.
Term and Termination
(a) Term. The Term of this Agreement shall be effective as of the date that the covered entity first uses Smartwaiver’s services and shall terminate on the date of termination of the covered entity’s contract with business associate or on the date covered entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.
(b) Termination for Cause. Business associate authorizes termination of this Agreement by covered entity, if covered entity determines business associate has violated a material term of the Agreement and business associate has not cured the breach or ended the violation within the time specified by covered entity.
(c) Obligations of Business Associate Upon Termination.
Upon termination of this Agreement for any reason, business associate shall return to covered entity or, if agreed to by covered entity, destroy all protected health information received from covered entity, or created, maintained, or received by business associate on behalf of covered entity, that the business associate still maintains in any form. Business associate shall retain no copies of the protected health information.
(d) Survival. The obligations of business associate under this Section shall survive the termination of this Agreement.
(a) Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
(b) Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
(c) Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
Revision date: October 27, 2014
Amendments: Government Users/Members