Effective June 8, 2026
PLEASE READ THE FOLLOWING CAREFULLY. THESE TERMS OF SERVICE ("Agreement") GOVERN YOUR ACCESS TO AND USE OF THE SIDEKICK PLATFORM (AS DEFINED BELOW) AS PROVIDED BY SIDEKICK WELLNESS INC. ("SWI"), INCLUDING BUT NOT LIMITED TO, ANY FREE, TRIAL, BETA OR PAID SERVICES OR SOFTWARE.
By clicking on the "I agree to" button (or any similar button) that is presented to you at the time of sign-up, by accessing or using the Sidekick Platform, or by otherwise indicating your acceptance of a Service Order (as defined below), you agree to be bound by this Agreement. The date you clicked such button, accepted a Service Order, or otherwise agreed to be bound by this Agreement is the "Effective Date". SWI may modify this Agreement from time to time, subject to Section 9.3 below.
This Agreement applies to any customer that subscribes to, purchases, receives, or otherwise accesses the Sidekick Platform as a customer, whether the customer is an organization, other legal entity, sole proprietor, or individual acting on their own behalf. For purposes of this Agreement, “Customer” means the person or entity that accepts this Agreement, enters into a Service Order, creates or maintains an account, purchases or receives credits or other usage-based access, subscribes to a plan, or otherwise accesses or uses the Sidekick Platform as a customer.
An individual’s use of the Sidekick Platform is governed by this Agreement when the individual accesses or uses the Sidekick Platform as a Customer, including by purchasing credits, subscribing to a plan, creating, administering, or otherwise accessing a Customer account, or otherwise obtaining access to the Sidekick Platform on their own behalf. An individual’s use of the Sidekick Platform is governed by SWI’s End User Terms when the individual accesses or uses the Sidekick Platform as an end user through an organization, customer, or other third party that has made the Sidekick Platform available to that individual, unless the individual separately acts as a Customer.
If there is a conflict between this Agreement and SWI’s End User Terms with respect to a particular use of the Sidekick Platform, this Agreement governs the individual’s use in their capacity as a Customer, and the End User Terms govern the individual’s use in their capacity as an end user, except to the extent otherwise expressly stated in a Service Order or other written agreement with SWI.
You represent to us that you are lawfully able to enter into contracts. If you are accepting this Agreement on behalf of a company, organization, or other legal entity, you represent that you have authority to bind that entity to this Agreement, and the term “Customer” will refer to that entity. If you are accepting this Agreement on your own behalf, you represent that you are accepting this Agreement as an individual Customer, and the term “Customer” will refer to you. If you do not have such authority, are not lawfully able to enter into contracts, or do not agree with this Agreement, you must not accept this Agreement and must not access or use the Sidekick Platform or any related services.
You acknowledge and agree that:
● SWI is commercializing a proprietary technology solution that enables organizations, creators, and other customers to transform, organize, and make available their content, knowledge, media, and other materials through interactive, expert-guided digital experiences, including agent conversations and media-based experiences (the "SWI Platform");
● Customer desires to access and use the Sidekick Platform and, where applicable, to provide its personnel, members, users, or other authorized individuals with access to and use of the Sidekick Platform, and SWI is willing to provide such access and use subject to the terms and conditions of this Agreement and the applicable Service Order;
● Access to and use of the Sidekick Platform may be provided on a paid, free, trial, beta, promotional, credit-based, usage-based, subscription, professional services, or other basis, as specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms accepted by Customer.
For and in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer agrees to the following terms and conditions:
1. SIDEKICK PLATFORM; ACCESS AND USE
1.1 Plans and Service Orders. Customer may access and use the Sidekick Platform under one or more plans, subscriptions, usage arrangements, credit packages, trials, beta programs, professional services arrangements, or other ordering arrangements made available by SWI from time to time, whether through SWI’s website, online checkout or sign-up process, the Sidekick Platform, or an ordering document accepted by the Parties. Each applicable plan, subscription, usage arrangement, credit package, trial, beta program, professional services arrangement, website order, online checkout or sign-up flow, platform-based order, or ordering document may be referred to in this Agreement as a “Service Order” or “Subscription Plan,” as applicable. For clarity, a Service Order may include an ordering document signed or accepted by the Parties, an order submitted through SWI’s website, an online checkout or sign-up flow, a platform-based order, or other ordering terms accepted by Customer. The applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms will specify the commercial terms applicable to Customer’s access to and use of the Sidekick Platform, which may include fees, payment terms, usage credits, usage limits, renewal terms, expiration periods, permitted users, support terms, professional services, or other plan-specific terms.
1.2 Free, Trial, Beta, or Promotional Access. SWI may make certain free, trial, beta, promotional, or limited-access versions of the Sidekick Platform available from time to time, subject to any eligibility criteria, usage limits, credit allocations, duration limits, feature limitations, support limitations, or other restrictions specified by SWI in the applicable Service Order, Subscription Plan, online sign-up flow, or other applicable terms. If Customer exceeds or no longer satisfies the applicable eligibility criteria, limits, or restrictions, SWI may require Customer to purchase a paid plan, credits, additional usage rights, or other paid access to continue using the Sidekick Platform.
1.3 Paid Access. Paid access to the Sidekick Platform is subject to Customer’s payment of the Fees and compliance with any usage limits, credit terms, plan restrictions, and other commercial terms set forth in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms accepted by Customer. Fees may be based on one or more billing metrics, including credits, usage, consumption, subscription access, features, volume, duration, professional services, or any other metric specified in the applicable ordering terms.
1.4 Access, Definitions, and Use. Subject to this Agreement and Customer’s payment of all applicable Fees, SWI grants Customer a non-exclusive right to access and use the Sidekick Platform during the applicable Term and in accordance with the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms. Access is contingent upon Customer maintaining an applicable plan, credit balance, usage allocation, subscription, account, or other authorized access arrangement in good standing.
(a) “Authorized User” means, as applicable: (i) an individual Customer using the Sidekick Platform on their own behalf; or (ii) a unique individual who has been invited or authorized by Customer to access and use the Sidekick Platform and has successfully registered for an account through the Sidekick Platform. Customer is responsible for administering Authorized User access and for all activity by its Authorized Users in accordance with this Agreement and the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms.
(b) “Credits” means prepaid, included, promotional, trial, or other usage credits that may be applied toward access to or use of the Sidekick Platform, as specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms. Credits may be subject to usage rules, consumption rates, expiration dates, renewal terms, replenishment requirements, limitations, or other restrictions specified in the applicable ordering terms.
(c) “Usage Units” means credits, tokens, messages, conversations, minutes, documents, storage, transactions, or other usage-based units or measures used to calculate, limit, meter, or administer Customer’s access to or use of the Sidekick Platform, as specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms.
1.5 Credits and Usage. If Customer purchases or receives Credits or other Usage Units, Customer may use those Credits or Usage Units for access to and use of the Sidekick Platform in accordance with the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms. Credits and other Usage Units are subject to any usage rules, consumption rates, expiration dates, renewal terms, refund terms, transfer restrictions, and other limitations specified in the applicable ordering terms. Unless otherwise specified in the applicable ordering terms, Credits and other Usage Units are not redeemable for cash and may be used only for access to and use of the Sidekick Platform.
1.6 Free, Trial, Beta, and Promotional Disclaimer. If Customer accesses the Sidekick Platform through any free, trial, beta, promotional, or similar limited-access offering, including any free or promotional Credits or Usage Units: (i) such access is provided “AS IS” and without warranty of any kind, notwithstanding Section 7; and (ii) SWI may modify, suspend, or terminate such access, offering, Credits, or Usage Units at any time, unless otherwise specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms.
1.7 Customer Responsibilities. Customer understands that SWI’s performance is dependent in part on the content, configuration decisions, access controls, usage decisions, and actions of Customer and its administrators, subject matter experts, and Authorized Users. Accordingly, Customer will perform all required actions requested by SWI in connection with the implementation, administration, and use of the Sidekick Platform. Customer is responsible for administering Authorized User access, monitoring usage, and managing any Credits, Usage Units, usage limits, or other access arrangements applicable to Customer’s account, except to the extent otherwise specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms.
2. PROFESSIONAL SERVICES
Customer may, from time to time, request that SWI perform professional services with respect to the Sidekick Platform (collectively, "Professional Services"). SWI may agree to perform such Professional Services upon mutual written agreement of the Parties (including by email) or via a Service Order, provided that such agreement explicitly sets forth the scope of services, the associated fees, and the applicable payment terms.
3. RESTRICTIONS; OWNERSHIP AND LICENSES
3.1 Restrictions. Customer will not at any time and will not encourage, assist, permit or enable any person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Sidekick Platform in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Sidekick Platform or any associated documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Sidekick Platform, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Sidekick Platform to any other person, or otherwise allow any person to use the Sidekick Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Sidekick Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person (including publicity or privacy), or that violates any applicable law; (vi) post, upload, publish, submit or transmit any content that: (a) infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person (including publicity or privacy), (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar or offensive; (e) promotes discrimination, bigotry, racism, hatred, harassment, abuse or harm against any individual or group; (f) is violent, intimidating or threatening or promotes violence or actions that are threatening to any person or entity; (g) promotes illegal or harmful activities or substances; (vii) access, tamper with, or use non-public areas of the Sidekick Platform, SWI's computer systems, or the technical delivery systems of SWI's providers; (viii) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (ix) provide any information that is intended to misinform, misdirect, mislead, or otherwise deceive any users of the Sidekick Platform or any other third party; (x) violate any applicable law or regulation, or policies (including usage or AI policies); (xi) use any information contained in or made available through the Sidekick Platform to train, improve or have trained or improved an AI model (e.g., engage in "model scraping"); (xii) interfere with, or disrupt the integrity or performance of, the Sidekick Platform, or any data or content contained therein or transmitted thereby, (xiii) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the Sidekick Platform; (xiv) attempt to probe, scan or test the vulnerability of the Sidekick Platform or any other SWI system or network or breach any security or authentication measures; (xv) access or search the Sidekick Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Sidekick Platform features provided by SWI for use expressly for such purposes; (xvi) use the Sidekick Platform for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Sidekick Platform. Notwithstanding anything to the contrary under this Agreement, SWI reserves the right to, in each case without notice, remove or disable access to any Customer Content in violation of this Section 3.1, as determined by SWI and/or terminate or suspend access to the Sidekick Platform by any Authorized User that has violated this Section 3.1, as determined by SWI.
3.2 SWI Ownership. Customer acknowledges and agrees that, as between SWI and Customer, SWI exclusively owns all rights, title and interest in and to the Sidekick Platform, including any improvements, modifications, enhancements, or customizations thereto or thereof, and any associated usage metrics.
3.3 Customer Content. As between Customer and SWI, Customer exclusively owns all right, title and interest in and to all content uploaded or otherwise provided by Customer or its Authorized Users to the Sidekick Platform ("Customer Content"). Customer hereby grants SWI a non-exclusive, worldwide, royalty-free right and license to use, host, process, reproduce, transmit, display, perform, and modify Customer Content solely as necessary to provide, operate, secure, maintain, support, and make available the Sidekick Platform to Customer and Authorized Users under this Agreement, and as otherwise expressly authorized by Customer.
3.4 Use of Customer Content and Authorized User Data for AI Systems. SWI will not use Customer Content, Authorized User interactions, private conversations, uploaded files, audio recordings, voice inputs, transcripts, Inputs, Outputs, or other private data provided through the Sidekick Platform to train, fine-tune, benchmark, evaluate, or improve generalized AI models or third-party AI models, except as expressly authorized by Customer and permitted by applicable law. SWI may use limited technical, usage, and diagnostic information to operate, secure, debug, maintain, analyze, and improve the performance, reliability, safety, and functionality of the Sidekick Platform, consistent with this Agreement and SWI’s Privacy Policy.
3.5 Usage Data. Notwithstanding anything to the contrary in this Agreement, SWI may collect, use, and analyze data regarding the use and performance of the Sidekick Platform by Customer and its Authorized Users (e.g., usage metrics, technical logs, and configuration data) (“Usage Data”). SWI may use Usage Data in aggregated or anonymized form to operate, secure, analyze, maintain, and improve the Sidekick Platform; develop and improve safety, reliability, and performance features; prevent abuse; generate analytics for Customer; and comply with legal obligations. For clarity, Usage Data does not include Customer Content, and SWI will not use Usage Data in a manner that identifies Customer or any Authorized User except as necessary to provide, secure, support, or administer the Sidekick Platform, comply with law, enforce this Agreement, or as otherwise authorized by Customer.
3.6 Privacy. SWI’s collection, use, disclosure, retention, and protection of personal information are described in SWI’s Privacy Policy. SWI will process personal information in accordance with this Agreement, the Privacy Policy, and applicable law. Customer is responsible for providing any notices and obtaining any consents or authorizations required for Customer’s collection, use, disclosure, and provision of Customer Content and Authorized User information to SWI.
3.7 Sensitive and Health-Related Information. Customer acknowledges that Customer Content or Authorized User interactions may include sensitive information or health-related information, including information that may constitute consumer health data under applicable law. SWI will handle such information in accordance with this Agreement, SWI’s Privacy Policy, and applicable law. Customer is responsible for determining whether Customer’s use of the Sidekick Platform requires any additional notices, consents, authorizations, agreements, or safeguards.
3.8 Customer Warranties. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Content (including any personal data provided or otherwise collected pursuant to Customer's policies) as contemplated by this Agreement and (ii) SWI's use of the Customer Content in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
3.9 Feedback. From time to time Customer may provide SWI with suggestions, comments, feedback or the like with regard to the Sidekick Platform (collectively, “Sidekick Platform Feedback”). Customer hereby grants SWI a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Sidekick Platform Feedback in connection with SWI’s business purposes, including, without limitation, the maintenance, operation and improvement of the Sidekick Platform. For clarity, Sidekick Platform Feedback does not include Customer Content or private Authorized User interactions unless Customer expressly submits such information as feedback.
3.10 Fair Use Policy. Customer acknowledges that the Sidekick Platform utilizes shared AI, cloud, storage, and other technical resources. Customer’s use must be consistent with normal, human-operated business activity and any usage limits, credit balances, consumption rules, or other restrictions specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms. SWI reserves the right to throttle, suspend, limit, or terminate access if Customer’s usage patterns, including automated high-volume queries, botting, scraping, credential sharing, attempts to avoid usage limits, cryptocurrency mining, or other abnormal usage, significantly exceed ordinary usage patterns, place an unreasonable burden on SWI’s infrastructure, or otherwise violate this Agreement or the applicable ordering terms.
4. CONFIDENTIALITY.
Each Party agrees not to disclose or use (except as permitted in this Agreement) the Confidential Information of the other Party without the disclosing Party's prior written consent. "Confidential Information" means all confidential business, technical and financial information of the disclosing Party that is marked as "Confidential" or an equivalent designation or that should reasonably be understood to be confidential given the nature of the information and/or the circumstances surrounding the disclosure. SWI's Confidential Information includes, without limitation, the SWI Platform and all documentation, and data and reports relating to the Sidekick Platform. Confidential Information does not include information that: (i) has become publicly known through no breach by the receiving Party; (ii) was rightfully received by the receiving Party from a third party who was not subject to a duty of confidentiality to the disclosing Party without restriction on use or disclosure; or (iii) is required to be disclosed by law or by a governmental authority (but only to the extent of such required disclosure). The obligations of confidentiality under this Section 4 shall survive for a period of five (5) years following the termination or expiration of this Agreement. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party's advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
5. PAYMENT OF FEES
5.1 Fees. Customer agrees to pay the fees set forth in the applicable Service Order, Subscription Plan, online sign-up flow, invoice, or other ordering terms accepted by Customer (“Fees”). Fees may be based on credits, usage, consumption, subscription access, features, volume, duration, professional services, implementation services, support services, or any other billing metric specified in the applicable ordering terms.
(a) Credits and Usage-Based Fees. If the applicable ordering terms provide for Credits, Usage Units, or other usage-based access, the applicable ordering terms may specify the number of Credits or Usage Units purchased or included, applicable consumption rates, usage limits, expiration periods, replenishment terms, overage terms, renewal terms, refund terms, transfer restrictions, and any other restrictions on use. Customer is responsible for monitoring its use of the Sidekick Platform and maintaining any required credit balance, usage allocation, payment method, subscription, account, or other authorized access arrangement.
(b) Fee Adjustments. SWI reserves the right to adjust Fees, credit packages, consumption rates, usage limits, subscription terms, renewal terms, or other commercial terms applicable to Customer’s plan or access arrangement upon renewal, replenishment, additional purchase, or as otherwise specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms. SWI will provide notice of material fee changes as required by the applicable ordering terms or applicable law. Customer agrees to pay the fees set forth in the Service Order or as otherwise communicated to Customer in accordance with this Agreement (“Fees”).
5.2 Payment Terms. Fees are due as specified in the applicable Service Order, Subscription Plan, online sign-up flow, invoice, or other ordering terms. Unless otherwise specified in the applicable ordering terms, Fees for prepaid Credits, Usage Units, subscriptions, or other paid access are due in advance. Customer authorizes SWI and its payment processors to store payment information and charge the applicable payment method for all Fees. For any Fees that are invoiced, including Professional Services, Customer shall pay all Fees within thirty (30) days after the date of SWI’s invoice, unless otherwise specified in the applicable Service Order or invoice.
5.3 Renewal, Replenishment, and Cancellation. If the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms provide for automatic renewal, recurring charges, automatic replenishment of Credits or Usage Units, or other recurring purchases, Customer authorizes SWI to charge the payment method on file in accordance with those terms unless Customer cancels before the applicable renewal, replenishment, or charge date. Customer may cancel recurring access, renewal, or replenishment as specified in the applicable ordering terms or through any cancellation mechanism made available by SWI. Unless otherwise specified in the applicable ordering terms, cancellation will be effective at the end of the then-current billing, subscription, access, or credit period, and no refunds will be issued for partial periods, unused access, unused Credits, or unused Usage Units.
5.4 Late Payment and Taxes. Unpaid invoices 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 services provided hereunder other than U.S. taxes based on SWI’s net income.
5.5 Suspension of Service. In addition to any other remedies available, SWI reserves the right to suspend, limit, or terminate access to the Sidekick Platform if Customer fails to make any payment due hereunder in a timely manner, exhausts its available Credits or Usage Units, exceeds applicable usage limits, fails to maintain an authorized access arrangement in good standing, or otherwise fails to comply with this Agreement or the applicable ordering terms.
5.6 Billing Disputes. If Customer believes that SWI has billed Customer incorrectly or incorrectly calculated Customer’s Credits, Usage Units, consumption, or usage-based charges, Customer must contact SWI no later than thirty (30) days after the closing date on the first billing statement, transaction record, usage record, or invoice in which the error or problem appeared, in order to receive an adjustment or credit, if applicable.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall commence on the Effective Date and will remain in full force and effect until terminated by either Party in accordance with Section 6.2 (the "Term").
6.2 Termination. If either Party materially breaches any term of this Agreement and fails to cure such breach within sixty (60) days after notice thereof by the non-breaching Party (thirty (30) days in the case of non-payment), the non-breaching Party may terminate this Agreement immediately upon notice. Customer may terminate this Agreement for convenience for any reason, including no reason at all, without penalty, prejudice or further liability, upon thirty (30) days prior written notice to SWI. SWI may terminate this Agreement for convenience for any reason, including no reason at all, without penalty, prejudice or further liability, upon thirty (30) days prior written notice to the other Party.
6.3 Effect of Termination. Customer will pay in full for all Fees incurred up to and including the effective date of termination. Upon any termination or expiration of this Agreement: (a) Customer’s and, unless otherwise elected by SWI, Authorized Users’ right to access and use the Sidekick Platform shall immediately terminate, and Customer and, unless otherwise elected by SWI, its Authorized Users shall immediately cease all use of the Sidekick Platform; and (b) each Party shall return to the other Party or, at the other Party’s option, destroy all Confidential Information of the other Party in its possession. Upon Customer’s written request following termination or expiration of this Agreement, SWI will delete Customer Content in its possession or control within a commercially reasonable period, except to the extent retention is required by applicable law, necessary for legitimate backup, archival, security, legal, compliance, or dispute-resolution purposes, or otherwise permitted under this Agreement. Any retained Customer Content will remain subject to the confidentiality, privacy, security, and data-protection obligations applicable under this Agreement for so long as SWI retains it. If this Agreement is terminated by SWI for convenience pursuant to Section 6.2, or by Customer due to SWI’s uncured material breach pursuant to Section 6.2, SWI will refund prepaid Fees for unused access periods, unused Credits, or unused Usage Units only to the extent specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms. If this Agreement is terminated by Customer for convenience, or by SWI due to Customer’s material breach, Customer is not entitled to any refund, credit, or other reimbursement except to the extent expressly specified in the applicable ordering terms or required by applicable law.
6.4 Survival. Sections 3, 4, 5 (limited to unpaid Fees), 7, 8, 9 and this Section 6.4, and any other provision that by its nature should survive expiration or termination, shall survive any expiration or termination of this Agreement.
6.5 Termination for Inactivity. SWI may, in its sole discretion, terminate this Agreement and the Customer’s account if there has been no activity (including log-ins or active Platform usage) for a period of eighteen (18) consecutive months. SWI will use commercially reasonable efforts to provide notice prior to such termination. Unless otherwise specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms, any unused Credits or Usage Units associated with an account terminated for inactivity will expire upon termination and will not be refunded.
7. WARRANTY AND DISCLAIMER
7.1 SWI represents and warrants that: (i) it has all right and authority necessary to enter into and perform this Agreement; (ii) the Sidekick Platform will materially conform to the specifications set forth in SWI’s then-current official documentation for the Sidekick Platform. In the event that the Sidekick Platform fails to conform to the foregoing warranty, as Customer’s sole and exclusive remedy and SWI’s sole and exclusive liability for such failure, SWI will, at its expense, use commercially reasonable efforts to correct the non-conformity. Customer represents and warrants to SWI that Customer (i) has all right and authority necessary to enter into and perform this Agreement; and (ii) has all rights from third parties necessary to allow SWI to perform the activities set forth in this Agreement and (iii) has all rights from third parties necessary to provide SWI with all information about Authorized Users that it provides under an applicable Service Order and as it accesses and uses the Sidekick Platform.
7.2 SWI does not practice medicine, provide medical advice, make diagnostic, treatment, or other clinical decisions, judgments, or recommendations, provide legal advice, make benefits determinations, make insurance determinations, adjudicate claims, or provide emergency services. The Sidekick Platform provides informational and educational support only. Customer and Authorized Users should not rely on the Sidekick Platform as a substitute for professional judgment, official decisions, advice from qualified professionals, or emergency response. If an Authorized User has a medical emergency, mental health crisis, or believes they may be in danger, they should contact emergency services or an appropriate crisis-support resource immediately.
7.3 THE SIDEKICK PLATFORM AND INFORMATION OBTAINED THROUGH SIDEKICK PLATFORM ARE PROVIDED "AS IS" AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1, SWI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO INFORMATION OBTAINED FROM SWI OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1 THE PARTIES AGREE THAT UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOST GOODWILL, LOSS OF INVESTMENT, LOST PROFITS, BUSINESS INTERRUPTION, LOST DATA, LOST USE OR OTHER LOSSES
8.2 SWI’S AGGREGATE LIABILITY FOR ALL CLAIMS, LOSSES, DAMAGES, OR LOSSES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO SWI IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY UNDER THIS AGREEMENT.
8.3 THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF THE LIABLE PARTY OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES, OR DAMAGES, AND SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OTHER REMEDIES POSSESSED BY THE OTHER PARTY OR THIRD PARTIES.
8.4 Indemnification.
(a) SWI Indemnification. Subject to Section 8.4(b), SWI will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s use of the Sidekick Platform as permitted hereunder infringes or misappropriates such third party’s issued patents or trade secrets, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by SWI (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. SWI’s obligations under Section 8.4(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Content; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Sidekick Platform that have been provided by SWI; (iv) modifications to the Sidekick Platform by anyone other than SWI; (v) combinations of the Sidekick Platform with software, data or materials not provided by SWI; or (vi) any use of the Sidekick Platform by Customer on the Free Tier.
(c) IP Remedies. If SWI reasonably believes the Sidekick Platform (or any component thereof) could infringe or misappropriate any third party’s intellectual property rights, SWI may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Sidekick Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue use. If SWI determines that neither alternative is commercially practicable, SWI may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. The rights and remedies set forth in this Section 8.4(c) will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Sidekick Platform.
(d) Customer Indemnification. Customer will defend SWI against Claims arising from (i) any Customer Content, including, without limitation, (A) any Claim that the Customer Content infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Content violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) any use of the Sidekick Platform by Customer or its Authorized Users in a manner that is not in accordance with this Agreement, and in each case, will indemnify and hold harmless SWI against any damages and costs awarded against SWI or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
(e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
9. GENERAL
9.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, excluding its body of law controlling conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Delaware and the Parties irrevocably consent to the personal jurisdiction and venue therein.
9.2 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except that SWI may, without such consent, assign this Agreement to an affiliate or to a successor or acquirer, as the case may be (“Assignee”) in connection with a corporate reorganization, merger, acquisition, or the sale of all or substantially all of SWI’s assets. In the case of such an assignment, the Parties agree and acknowledge that SWI may transfer to the Assignee any or all Customer Content, subject to the requirements of applicable law and further subject to any additional obligations that may be imposed by this Agreement provided that any such Assignee will be bound by confidentiality, privacy, security, and data-protection obligations no less protective than those applicable to SWI under this Agreement with respect to Customer Content. Subject to the foregoing, this Agreement will bind and benefit the Parties and their respective successors and assigns. Any attempted assignment in violation of this Section will be null and void.
9.3 Changes to Agreement. SWI reserves the right to make modifications to this Agreement at any time in its sole discretion by posting a revised version on the SWI website or by otherwise notifying Customer in accordance with this Agreement. SWI will use commercially reasonable efforts to provide at least 30 days’ advance notice, but in all events the modified terms will become effective upon the date specified in the posting or, if SWI notifies Customer by email, as stated in the email message. By continuing to use the Sidekick Platform after the effective date of any modifications to this Agreement, Customer hereby agrees to be bound by the modified terms. Customer acknowledges and agrees that it is Customer’s responsibility to check the SWI website and its email regularly for modifications to this Agreement, and to keep its email address current. Notwithstanding the foregoing, modifications to this Agreement will not materially reduce SWI’s confidentiality, privacy, security, or data-protection obligations with respect to Customer Content collected or processed before the effective date of the modification, except to the extent required by applicable law or agreed by Customer. Changes to Fees, Credits, Usage Units, consumption rates, usage limits, renewal terms, replenishment terms, or other commercial terms will apply as specified in the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms.
9.4 Non-Exclusive Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
9.5 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
9.6 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.7 Notices. SWI may provide any notice to Customer under this Agreement by: (a) posting a notice on the SWI website; or (b) sending a message to the email address then associated with Customer's account. Notices SWI provides by posting on the SWI website will be effective upon posting and notices SWI provides by email will be effective when SWI sends the email. Customer acknowledges and agrees that any notices, agreements, disclosures, or other communications that SWI sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. All notices to SWI that are required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving Party, and on the next business day if sent after normal business hours of the receiving Party. Except as otherwise instructed by SWI, Customer shall send all such notices to SWI to PO Box 261160, Encino, CA 91426 and email to legal@sidekickplatform.com.
9.8 Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
9.9 Relationship of the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other's behalf without such other Party's prior written consent.
9.10 Service Orders; Order of Precedence. Each Service Order, Subscription Plan, online sign-up flow, or other ordering terms accepted by Customer is incorporated into and forms part of this Agreement. If there is a conflict between this Agreement and any Service Order, Subscription Plan, online sign-up flow, or other ordering terms, this Agreement will control except with respect to plan-specific, pricing, payment, credit, usage, renewal, cancellation, refund, support, implementation, professional services, or other commercial terms, for which the applicable Service Order, Subscription Plan, online sign-up flow, or other ordering terms will control, unless such terms expressly state otherwise.
9.11 Entire Agreement. This Agreement, including any Service Orders, Subscription Plans, online sign-up flows, and other ordering terms incorporated herein, constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party, through ordering terms accepted by Customer with respect to plan-specific or commercial terms, or as set forth in Section 9.3.
9.12 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, failure of the Internet, denial of service, malware, or other cyber-attacks, war, acts of terror, riot, acts of God or governmental action (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
9.13 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it.
9.14 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.