Intro
Welcome to Swan AI. These Terms of Use (“Terms”) constitute a legally binding agreement between you, on behalf of the entity you represent (“Customer,” “you,” or “your”), and Swan AI, Inc., a Delaware corporation with its registered address at 108 West 13th Street, Suite 100, Wilmington, DE 19801 (“Swan AI,” “Company,” “we,” “us,” or “our”).
By accessing or using the Swan AI platform, creating an account, or clicking “I Agree” (or similar acceptance mechanism), you acknowledge that you have read, understood, and agree to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services.
1. Definition
- “Services” means the Swan AI software platform designed to improve go-to-market operations, including all features, functionalities, and AI-enabled capabilities made available through the platform.
- “Customer Data” means all non-public data provided by Customer to Swan AI or which is learned by Swan AI in the course of performing the Services so as to enable the provision of the Services.
- “Output” means the output data generated from the Services through Customer’s use of the platform.
- “Software” means any software, documentation, or data related to the Services.
- “Proprietary Information” means business, technical, or financial information relating to a party’s business that is disclosed by one party to the other.
- “Equipment” means any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers, and the like.
2. Account Registration and Access
As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Swan AI reserves the right to refuse registration of, or cancel, passwords it deems inappropriate.
Customer is responsible for maintaining the security of its account, passwords (including administrative and user passwords), Equipment, and files, and for all uses of Customer’s account or Equipment. Customer is responsible for all activity that occurs within its account.
3. Services and Support
Subject to these Terms, Swan AI will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms set forth in Section 12 below.
Swan AI will provide Customer with technical support services in accordance with the Support Terms set forth in Section 13 below.
4. Restrictions and Responsibilities
Customer will not, directly or indirectly:
(a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms relevant to the Services or any Software;
(b) modify, translate, or create derivative works based on the Services or any Software, for benchmarking purposes, or to develop any competitive products or services;
(c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(d) remove any proprietary notices or labels; or
(e) remove or export from the United States, or allow the export or re-export of, the Services, Software, or anything related thereto, or any direct product thereof, in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
Customer shall be responsible for obtaining and maintaining any Equipment needed to connect to, access, or otherwise use the Services.
5. Confidentiality and Proprietary Rights
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Proprietary Information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party any such Proprietary Information, other than its and its Affiliates’ employees, officers, directors, contractors, and legal counsel (collectively, “Representatives”), which shall be done on a strictly need-to-know basis solely to use and provide the Services and provided such Representatives are bound in writing by confidentiality undertakings at least as restrictive as those contained herein.
The foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law, an order or requirement of court, administrative agency, or other governmental body, provided that the Receiving Party shall, to the extent legally permissible, provide prompt notice and the opportunity for the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
Upon expiration or termination of these Terms, or upon request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party any physical, electronic, or other media containing any of the Proprietary Information, including any copies thereof.
6. Intellectual Property and Data Ownership
Customer Ownership. Customer shall own all right, title, and interest in and to the Customer Data, any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, as well as any work product, deliverables, or other output created on behalf of or for the Customer using the Customer Data or as required or requested by the Customer as part of the Services. To the extent permitted by applicable law, Customer will own the Output, and Swan AI hereby assigns to Customer all right, title, and interest, if any, in and to the Output.
Swan AI Ownership. Swan AI shall own and retain all right, title, and interest in and to: (a) the Services and Software, all improvements, enhancements, or modifications thereto; (b) any software, applications, inventions, or other technology developed in connection with implementation services or support; and (c) all intellectual property rights related to any of the foregoing.
Publication Restriction. No Output, deliverables, work products, or work of authorship created as part of the Services or on behalf of Customer shall be published, disclosed, made available to a third party, or otherwise made public in any manner without the express written permission and consent of Customer.
Aggregated Data. Notwithstanding anything to the contrary, Swan AI shall have the right to collect and analyze statistical data relating to the operation and performance of various aspects of the Services and related systems and technologies (excluding Customer Data and data derived therefrom), and Swan AI will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Swan AI offerings, solely in aggregate and de-identified form in connection with its internal business purposes.
AI Training. Swan AI shall not use any of the Output, Customer Data, or any statistical data derived or learned from the Services in order to train any artificial intelligence machine or engine used or which may be used by Swan AI.
7. Fees and Payment
Customer will pay Swan AI the applicable fees described in the relevant Order Form for the Services and any other charges agreed upon in accordance with the terms therein (“Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees, Customer shall be billed for such usage and agrees to pay the additional fees within thirty (30) days of the invoice date.
If Customer believes that Swan AI has billed Customer incorrectly, Customer must contact Swan AI no later than 90 days after the invoice date in which the error or problem appeared in order to receive an adjustment or credit.
Swan AI may update the fees that will apply during any renewal term, by providing the Customer at least thirty (30) days notice prior to the commencement of the applicable renewal term.
Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with the Services other than taxes based on Swan AI’s net income.
8. Term and Termination
These Terms are effective upon your acceptance and continue for the Service Term specified in the applicable Order Form. The Agreement will automatically renew for successive terms one (1) year each, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may terminate these Terms upon thirty (30) days’ written notice if the other party materially breaches any provision of these Terms and does not cure the breach within fifteen (15) days of written notice.
Customer will pay in full for the Services up to and including the last day on which the Services are provided. In the event of early termination, Customer shall receive a pro-rated refund for any pre-paid Fees for the unused portion of the Services that follows the effective date of termination.
Upon any termination, Swan AI will make all Customer Data, Output, and any other Proprietary Information of Customer available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Swan AI will delete stored Customer Data unless agreed otherwise by Customer.
All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, Swan AI’s proprietary rights in the Services and Software, warranty disclaimers, and limitations of liability.
9. Representations, Warranties, and Disclaimers
Mutual Warranties. Each party represents and warrants that: (i) it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation; (ii) it has the power to execute and perform its obligations under these Terms; and (iii) the signatory or accepting individual has been duly authorized and has full power and authority to act for the party it represents.
Swan AI Warranties. Swan AI further represents and warrants that: (i) it has the requisite professional qualifications, knowledge, and know-how in order to perform the Services in a professional manner and shall perform the Services using customary industry standards; (ii) it will perform its obligations under these Terms in compliance with all applicable laws, rules, and regulations in all material respects; and (iii) the execution and performance of these Terms does not conflict with any contractual obligations it has to any third party.
Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Swan AI or by third-party providers, or because of other causes beyond Swan AI’s reasonable control, but Swan AI shall use commercially reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
Disclaimers. SWAN AI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND SWAN AI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
AI Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE SERVICES UTILIZE AI TECHNOLOGY THAT MAY PRODUCE INACCURACIES OR ERRORS IN THE SERVICES, FEATURES, AND/OR THE OUTPUT, INCLUDING MODEL ERRORS AND/OR WORDING ERRORS, AND SWAN AI IS NOT RESPONSIBLE AND WILL NOT BE HELD LIABLE FOR ANY ERRORS OR INACCURACIES, INCLUDING BUT NOT LIMITED TO ANY LANGUAGE THAT MAY APPEAR WHILE CUSTOMER USES THE SERVICES.
Third-Party Model Disclaimer. THE SERVICES LEVERAGE THIRD-PARTY LARGE LANGUAGE MODELS AND INFRASTRUCTURE. SWAN AI DOES NOT CONTROL OR DEVELOP THESE FOUNDATIONAL MODELS AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THEIR ACCURACY, RELIABILITY, BEHAVIOR, OR PERFORMANCE.
Output Disclaimer. The Output is automatically generated. Swan AI does not independently originate, verify, or warrant the accuracy, completeness, timeliness, or reliability of any Output.
Third-Party AI. As part of the Services, Swan AI may provide various AI-enabled features and functionalities. As between you and Swan AI, Swan AI and its third-party technology providers and licensors, as applicable, own and reserve all legal right, title, and interest in and to the AI functionalities, including all intellectual property and proprietary rights. You may not use AI functionalities to create or share output in a manner that violates these Terms and/or any third-party policies, including, without limitation, Anthropic’s Usage Policy, Commercial Terms, applicable Service Specific Terms, and Supported Countries & Regions; OpenAI’s Content Policy, Usage Policy, Sharing and Publication Policy, Community Guidelines, and OpenAI Terms; as well as the Gemini Policy Guidelines.
10. Indemnification
The Customer shall indemnify, hold harmless, and at Swan AI’s first request, defend Swan AI, its members and affiliates, and each of their respective shareholders, officers, directors, partners, members, employees, affiliates, successors, and assigns, at its expense, from and against all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees, arising out of or in any way connected with or based on claims by a third party arising from any action or omission of the Customer in its use of the Services.
11. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, BREACHES OF SECTION 5 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, CUSTOMER’S PAYMENT OBLIGATIONS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIABILITY OF EITHER PARTY UNDER THESE TERMS SHALL BE CAPPED AT THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SWAN AI IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, BREACHES OF SECTION 5 (CONFIDENTIALITY), AND CUSTOMER’S PAYMENT OBLIGATIONS, EACH PARTY AND ITS SUPPLIERS (INCLUDING ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Service Level Terms
Swan AI will use commercially reasonable efforts so that the Services shall be available 99.9%, measured monthly, excluding federal holidays, weekends, and scheduled maintenance. Any downtime resulting from outages of third-party connections or utilities or other reasons beyond Swan AI’s control will be excluded from any such calculation.
In the event of any downtime, Swan AI will make a good faith effort to promptly address and resolve the issue, focusing on maintaining high service standards and minimizing disruption to Customer. Downtime shall begin to accrue as soon as Customer (with notice to Swan AI) recognizes that downtime is taking place, and continues until the availability of the Services is restored. Customer must notify Swan AI in writing 48 hours prior to the time of downtime, and failure to provide such notice may impact the resolution process.
Swan AI’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure to provide adequate service levels under these Terms.
13. Data Privacy
The Data Privacy Addendum (“DPA”) located at the following URL: Access Swan’s DPA here is incorporated by reference herein.
14. General Provisions
Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
Assignment. These Terms are not assignable, transferable, or sublicensable by either party except with the other party’s prior written consent. Notwithstanding the foregoing, a party may assign all or any portion of its rights and obligations under these Terms to any Affiliate of such party and/or to any successor by way of merger or consolidation or in connection with the sale or transfer of all or substantially all of its business and assets, by providing prompt written notice of such assignment to the other party.
Entire Agreement. These Terms constitute the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
No Agency. No agency, partnership, joint venture, or employment is created as a result of these Terms, and neither party has any authority of any kind to bind the other party in any respect whatsoever.
Attorneys’ Fees. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.
Notices. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles. Any disputes arising under these Terms shall be resolved in the state or federal courts located in New York, NY, and each party hereby irrevocably consents to the jurisdiction of such courts.
U.S. Government Users. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.