Terms of Service

We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately on the date that they are posted to the Services and/or otherwise made available through the Services, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. If you do not agree to be bound by the updated Terms, then you may not use the Services and you may cancel your Account as described in these Terms.

To use certain parts of the Services, you may be required to provide us with certain information, including personal information and information about your clinic or practice. To provide the Services, we may apply certain proprietary methodologies for analysis, processing, and transmission of such information. The collection, aggregation and analysis of such information may enable us to provide the Services to you. For details about how we collect and use your information, please see our Privacy Policy.

The Services include information regarding the Company as well as content such as contact information, text, logos, images, data compilations, links, other specialized content, technical data, documentation, know-how, specifications, materials, designs, data, the "look and feel" of the Services, algorithms, interface, interactive features, related graphics, illustrations, drawings, animations, and other features obtained from or through the Services (collectively, "Our Content"). We reserve all rights in and to Our Content. You acknowledge that all of Our Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any of Our Content that you access on or through the Services.

THE SERVICES ARE A SOFTWARE PLATFORM DESIGNED TO PROVIDE TOOLS AND INFRASTRUCTURE FOR CLINICS AND HEALTHCARE PRACTICES. THE SERVICES DO NOT PROVIDE MEDICAL, PSYCHIATRIC, OR OTHER PROFESSIONAL HEALTH CARE ADVICE OR SERVICE REQUIRING LICENSURE. USE OF THE SERVICES DOES NOT, AND IS NOT INTENDED TO, CREATE OR CONSTITUTE A PHYSICIAN-PATIENT OR PROVIDER-PATIENT RELATIONSHIP OF ANY KIND WITH COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, OR ANYONE ACTING ON BEHALF OF COMPANY. YOU ARE SOLELY RESPONSIBLE FOR ALL CLINICAL DECISIONS, PATIENT CARE, AND COMPLIANCE WITH APPLICABLE HEALTHCARE LAWS AND REGULATIONS.

We may make available certain artificial intelligence and machine learning-enabled functionality as part of the Services, or may supplement its offerings through the use of such functionality, including but not limited to automated workflow optimization, scheduling intelligence, patient communication tools, clinic operations analytics, and other features designed to enhance clinic performance and the user experience. Company does not make any representations or warranties with respect to the use of any such functionality or the results that may be obtained therefrom; you acknowledge that such tools are probabilistic in nature and do not guarantee accuracy or completeness. Company reserves the right to throttle or suspend use of any such functionality at any time.

You acknowledge and agree that Company may use de-identified, anonymized, or aggregated data derived from your use of the Services to train, develop, and improve its artificial intelligence and machine learning models and the Services generally. No individually identifiable patient information will be used for model training or development without appropriate de-identification in accordance with applicable law. All clinical decisions remain the sole responsibility of the licensed healthcare providers using the Services, regardless of any AI or ML-generated insights, recommendations, or outputs.

We may, in our sole discretion, refuse to offer the Services to any person or entity at any time. You are solely responsible for ensuring that you comply with all laws, rules and regulations applicable to you in connection with your use of the Services. You are prohibited from using the Services if your use of the Services is prohibited or conflicts with any applicable law.

You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to register with and/or use the Services.

You may be required to create an account in order to use certain parts or features of the Services ("Account"). Your Account is personal to you and may be used only by you. By creating an Account, you give us permission to contact you about the Services and your use thereof.

You may not use a user name that is misleading or that includes any inappropriate language. We reserve the right to reject any user name and prevent the creation of an Account with any user name in our sole and absolute discretion. By creating an Account you agree: (i) that the information you provided to create your Account is accurate and complete, (ii) to promptly update and maintain your information with us, and (iii) that the information you are providing is your own or you are providing it on behalf of someone who authorized you to provide their personal information to us for the purposes of communication related to our Services.

You acknowledge and agree that we rely on the user ID and password (the "Account Credentials") to confirm whether Users accessing and using our Site, Platform or Services are authorized to do so. Maintaining the confidentiality of your Account Credentials is your responsibility, and you are responsible for any activity performed by any use of your Account Credentials. You must notify us immediately at support@swearby.health if you become aware that your Account Credentials have been compromised, that your Account is being used without authorization, or of any other breach of security related to your Account. You are solely responsible and solely liable for all actions and activities that occur in your Account using your Account Credentials, and for any User Content (as defined below) uploaded to your Account.

"Paid Products and Services" include portions of the Services that require payment of a fee, which may be one-time purchases or automatically renewing subscription services, including any subscription to any Paid Products and Services ("Subscriptions"). We may make changes to, suspend, or discontinue Paid Products and Services at any time for any reason, and we may, in our sole discretion, determine which Services or portions thereof are subject to fees or payment.

You agree to pay all applicable fees for Paid Products and Services including, without limitation, any monthly subscription fees, user fees, and any other fees, charges, or costs that you agree to purchase as part of the Paid Products and Services during the registration or checkout process ("Fees"). You agree to pay all Fees and all applicable taxes incurred prior to termination or cancellation of these Terms.

You authorize us to charge your designated payment method for Paid Products and Services. By providing an acceptable payment method, you represent and warrant that you are authorized to use the designated payment method and that you authorize us or our third-party payment processor to charge your payment method for the total amount of your purchase, including any applicable taxes and other charges. If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your Paid Products and Services may be suspended or canceled. You must resolve any problem we encounter in relation to the payment method you provide in order to proceed with your use of the Services. Refunds will not be issued unless required by law. Individual discounts may not be combined or stacked with any other discount. This payment obligation shall survive termination or cancellation of these Terms for any reason whatsoever.

Certain Paid Products and Services are subscription-based purchases, to which the following terms apply:

Your Subscription term may vary as a continuous, monthly, or annual term ("Subscription Term(s)"), as described in the course of purchasing the Paid Products and Services. Your Subscription will automatically renew for additional Subscription Terms until your Subscription is cancelled by you, or suspended or terminated by us. Unless otherwise indicated by us, your designated payment method will be charged prior to, or at the beginning of, each Subscription Term for the Subscription fee plus any applicable taxes and other charges. Before charging you for a Subscription Term, we will notify you of the applicable fees, and the renewal will occur at the price then in effect for the applicable Paid Products and Services.

You may cancel your Subscription at any time. Your cancellation will take effect at the end of the current Subscription Term. To cancel your subscription and automatic payment, contact us at support@swearby.health. Cancellation does not entitle you to the refund of any previously paid Fees and you will not receive a prorated refund for the remainder of the Subscription Term.

From time to time, we may offer free trials of certain Subscriptions for specified periods of time without payment. Prior to starting a free trial we will notify you of the applicable Subscription fees that will be charged at the expiration of your free trial. Unless you cancel your Subscription prior to the end of your free trial, when your free trial ends, we or our third-party payment processor will bill your designated payment method on a recurring basis for your Subscription fee, plus any applicable taxes and other charges, for as long as your Subscription continues.

We reserve the right to change the Fees for our Paid Products and Services, or any features or parts of our Paid Products and Services, at any time. In the event of such a change, we will provide notice to you via the email address associated with your account at least thirty (30) days in advance of the effective date of the change.

By using the Services or providing your contact information to us, you agree that we may communicate with you, including electronically, about the Services and your use thereof. If you wish to unsubscribe from marketing communications from us, please follow the unsubscribe instructions at the bottom of such communication.

When you register for the Services, we may send you an email or SMS text message containing a code in order to verify your phone number or email address and may send further emails and/or SMS text messages and push notifications ("Messages and Notifications") in order to keep you informed about the Services. By using the Services, you agree to receive Messages and Notifications regarding your use of the Services. SMS text messages are for transactional purposes only. We will obtain your consent if we wish to send you marketing or promotional SMS text messages. Reply "STOP" to stop receiving SMS text messages.

You may be permitted to input, provide, or otherwise make available certain information, messages, comments, text, data and other materials to the Services (collectively, the "User Content"). You represent and warrant that you own or have (and will continue to have) all the necessary licenses, rights, consents, and permissions to use and provide such User Content to us and that such User Content, and our use of such User Content, does not infringe any third party's intellectual property, privacy, publicity or other rights.

You hereby grant to us a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content for any purpose whatsoever, commercial or otherwise, without compensation to you, to the extent permitted by applicable law.

You agree that you will not post or upload any User Content that: (i) infringes, misappropriates or violates a third party's intellectual property rights or privacy rights; (ii) violates any applicable law or regulation; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm; (vi) is violent or threatening; or (vii) promotes illegal or harmful activities.

The Platform may include or integrate electronic prescribing ("e-prescribing") functionality provided through third-party e-prescribing partner(s), including access to certified health information exchange networks. The following terms apply to your use of e-prescribing functionality:

• Prescriber Licensure. Only users who possess the requisite licensure or authority to prescribe medications under applicable federal and state law may access and use e-prescribing functionality through the Platform.
• Valid Prescriptions. All prescriptions entered through the Platform must be the result of a valid prescriber's clinical judgment based upon an evaluation of the patient in accordance with applicable law.
• Controlled Substances. Electronic prescribing of controlled substances ("EPCS") is subject to additional requirements, including identity verification through third-party identity proofing services and two-factor authentication.
• Network Compliance. Use of e-prescribing functionality through the Platform is subject to the terms and conditions of any applicable certified health information exchange network.
• Patient Consent. You shall ensure that all prescriber end users have obtained all patient consents and authorizations required by applicable law prior to utilizing e-prescribing Services.
• No Clinical Advice. The e-prescribing functionality is a technology tool only. Company does not provide clinical advice, make prescribing recommendations, or exercise clinical judgment.
• Prescribing Pattern Monitoring. You acknowledge that prescribing patterns may be monitored for compliance with applicable law and to detect potential fraud, abuse, or diversion.
• Audit Rights. Our e-prescribing partner(s) and any applicable certified health information exchange network operator shall have the right to access, inspect, and audit your records relating to your use of e-prescribing Services.
• Fraud Investigation Cooperation. In the event of a suspected fraud investigation, you agree to respond to all information requests within five (5) business days.

To the extent that you input, upload, or otherwise make available patient or client data, protected health information, or other sensitive data through the Services ("Clinic Data"), you acknowledge and agree that:

• Company is not a "covered entity" under HIPAA. However, to the extent that Company receives, processes, or transmits PHI on behalf of a covered entity, Company may act as a "business associate." In such cases, Company's use and disclosure of PHI shall be governed by the applicable Business Associate Agreement ("BAA"). If you require a BAA, you must execute one with Company prior to inputting PHI into the Services.
• You are solely responsible for your compliance with all applicable federal, state, and local laws and regulations, including but not limited to HIPAA, the HITECH Act, state privacy laws, applicable controlled substance regulations, e-prescribing regulations, and any applicable medical board regulations.
• You are solely responsible for ensuring that you have obtained all necessary patient or client consents and authorizations prior to inputting any Clinic Data into the Services.
• Company shall not be liable for any claims, damages, or losses arising from your failure to obtain proper consents or your failure to comply with applicable healthcare laws and regulations.

You acknowledge and agree that you may not (a) make available or use the Services for the benefit of any third party other than in connection with your authorized clinic or practice operations; (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services; (c) use any Services to store or transmit any illegal, immoral, unlawful and/or unauthorized materials or interfere with or violate a third party's rights; (d) use the Services to transmit any malicious code; (e) interfere with or disrupt the integrity, performance or operation of the Services; (f) attempt to gain unauthorized access or bypass any measures imposed to prevent or restrict access to the Services; (g) use or take any direct or indirect action that imposes or circumvents any usage limits; (h) copy, modify, distribute, create derivative works, translate, port, reverse engineer, decompile, or disassemble any portion of the Services; (i) use any User Content of any user or other third party without our prior written consent; and (j) misrepresent or impersonate any person or provide inaccurate User Content.

You may stop using the Services at any time. You may also delete your Account at any time by contacting us at support@swearby.health.

If you cancel or delete your Account, we have no obligation to keep or retain any data or information, including User Content and Clinic Data, in your Account, and such data and information may be deleted.

Notwithstanding anything in this Section to the contrary, Company shall retain prescription records and related data as required by applicable federal and state law, including DEA regulations governing controlled substance records, state prescription record retention requirements, and applicable Business Associate Agreements, regardless of Account termination or cancellation.

We may terminate, limit or suspend your access to all or any part of your Account or our Services at any time, with or without cause, and with or without prior notice, effective immediately.

THE SERVICES AND OUR CONTENT ARE PROVIDED ON AN "AS IS" BASIS. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, PLATFORM, SERVICES AND OUR CONTENT, INCLUDING ANY WARRANTIES OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO, AND DISCLAIM ANY, WARRANTY THAT THE SITE, PLATFORM, SERVICES OR OUR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.

WITHOUT LIMITING THE FOREGOING, WE FURTHER DISCLAIM ANY WARRANTIES THAT THE SITE, PLATFORM AND/OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE, PLATFORM AND SERVICES IS AT YOUR OWN RISK.

COMPANY IS NOT A HEALTH CARE PROVIDER AND DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICES ARE A SOFTWARE PLATFORM ONLY. ALL CLINICAL DECISIONS REMAIN THE SOLE RESPONSIBILITY OF THE LICENSED HEALTHCARE PROVIDERS USING THE SERVICES.

In the event of any problem with the Services and/or any Service Content, you agree that your sole remedy is to cease using the Services. In no event shall we or our subsidiaries, affiliates, directors, officers, employees or any party involved in creating or producing the Services be liable to you for (a) any amount exceeding the fees paid by you to us during the twelve (12) months preceding the occurrence of events giving rise to your claim, or $100 if no fees have been paid by you to us, or (b) any special, indirect, incidental, consequential, punitive or exemplary damages, or any other damages whatsoever, resulting from the use of the Services or any Service Content or otherwise arising out of using the Services, whether under a theory of breach of contract, tort, strict liability, negligence, or otherwise, even if such party has been advised of the possibility of such damages.

You agree to defend, indemnify, and hold harmless Company, its affiliates and each of its affiliates' employees, contractors, directors, suppliers and representatives from all liabilities, losses, claims, and expenses, including, without limitation, reasonable attorney's fees, that arise from or relate to (i) your access, use or misuse of the Services, including with respect to your User Content, Clinic Data, and any other information you submit through the Services, (ii) your violation of these Terms or any applicable law, contract, policy, regulation or other obligation, or (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party with respect to your use of the Services.

Subject to the limited rights expressly granted hereunder, we and our licensors and third party providers, as may be applicable, reserve all rights, title and interest in and to the Services and Our Content, including all related intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth herein. Nothing in the Terms constitutes a waiver of the Company's intellectual property rights under any law.

"Swearby" and any associated names, marks and logos and all proprietary identifiers used by us in connection with the Site, Platform and/or Services are our trademarks, service marks and trade names of Company, whether or not registered. No right, license, or interest to such marks is granted hereunder. Other names that are mentioned on the Site or provided as part of the Services may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you hereunder.

Mandatory Arbitration of Disputes. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Diego, California, United States of America, before one arbitrator. If the dispute, claim or controversy exceeds $250,000, the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the "Rules"), and if not, the arbitration shall be administered by JAMS pursuant to the Rules and in accordance with the Expedited Procedures. Judgment on the award may be entered in any court having jurisdiction.

Attorney's Fees. In any arbitration arising out of or related to these Terms, the arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.

Class Action Waiver. YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims and may not otherwise preside over any form of a representative or class proceeding.

These Terms shall be governed by the laws of the State of Delaware, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

Exclusive jurisdiction for all disputes that are not required to be arbitrated will be the state and federal courts located in San Diego, California, United States of America, and you consent to the jurisdiction of those courts.

These Terms do not create any partnership, employment, agency or other relationship not herein specifically and explicitly stated. We may assign this Agreement in whole or in part at any time without notice. You may not assign your rights under these Terms, in whole or in part, to any third party without our prior written consent. Should any part of these Terms be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect.

Neither you nor us shall be liable for any failure or delay in performance under these Terms (other than for delay in the payment of money due and payable in accordance with these Terms) for causes beyond the party's reasonable control and not caused by that party's fault, or negligence, including, but not limited to, "acts of God," acts of government, flood, fire, civil unrest, acts of terror, pandemics and epidemics, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility.

If you have questions regarding our Terms, please contact us at support@swearby.health.

All rights reserved, Crucibbl Inc. d/b/a Swearby.