Swell Audio Creator Program Agreement
August 9, 2023
The Swell Audio Creator Program (the "Program") is available to eligible creators ("Premium Swellcasters") that want to generate revenue while connecting with listeners and building a community on the Swell Services. Please read this Swell Audio Creator Agreement (these "Agreement") carefully because it applies to your use of the Services as a Premium Swellcaster.
This Agreement incorporate by reference and supplement Swell's Terms of Service (the "Terms") and Privacy Policy (the "Privacy Policy"), provided that to the extent this Agreement conflicts with the Terms or Privacy Policy, this Agreement shall control in that regard. If you are entering into this Agreement on behalf of an entity, you represent and warrant you are authorized on such entity's behalf.
How the Swell Audio Creator Program Works.
Subscribers and Premium Content.
The Program allows you, as a Premium Swellcaster, to allow other users of the Services ("Subscribers") to subscribe to your channel (each, a "Swellcast Subscription") through quarterly payments (or some other cadence of payments designated by Swell in its sole discretion) and receive access to content you designate as "Premium Content," as well as other perks or features that may be offered by the functionality of the Services which you choose to offer to your Subscribers (together with Premium Content, "Subscriber Benefits"). You are solely responsible for the Premium Content you create and/or offer to Subscribers on the Services, including without limitation the listing, creation, promotion, and fulfillment of your Premium Content. For clarity, Premium Content will be considered User Content (as such term is defined in the Terms), and will be licensed to Swell and Subscribers as set forth in Section 6(b) and 6(c) of the Terms (and subject to Section 9 of the Terms).
Eligibility and Application.
The eligibility requirements for the Program can be found at: https://www.swell.life/audio-creator-program. If you would like to apply to become a Premium Swellcaster, follow the instructions at https://www.swell.life/audio-creator-program in order to submit an application. Swell will review and approve or reject your application to become a Premium Swellcaster in its sole discretion and based on your fulfillment of the eligibility requirements and any other requirements or criteria communicated to you by Swell.
Independent Contractor.
As a Premium Swellcaster, your relationship with Swell is limited to being an independent, third-party contractor, and not an employee, agent, joint venture or partner of Swell for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Swell. Swell does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Subscriber Benefits to Subscribers.
Changes to this Agreement or the Program.
We may update the Agreement or the Program from time to time at our sole discretion. If we do, we'll let you know by posting the updated Agreement and/or may also send other communications. It's important that you review the Agreement whenever we update them. If you continue to participate in the Program after we have posted updated Agreement it means that you accept and agree to the changes. If you don't agree to be bound by the changes, you may not participate in the Program anymore. Because our Program evolves over time we may change or discontinue all or any part of the Program, at any time and with or without notice, at our sole discretion.
Swellcast Subscriptions and Payments.
Details and Pricing.
Your offering of a Swellcast Subscription must include complete and accurate information about the Swellcast Subscription and Subscriber Benefits, including without limitation the price of the Swellcast Subscription, cadence of payment and Premium Content release, types of perks and benefits available to Subscribers, and any other details, specifications, rules, or requirements. You will remain solely responsible for establishing and communicating such details and keeping such details up-to-date and accurate at all times. Subject to applicable law, you may determine the specific price(s) of your Swellcast Subscription(s) (based on the pricing options enabled by Swell or its third-party payment processor via the functionality of the Services), provided that we reserve the right, in our sole discretion, to place restrictions or limitations on your Swellcast Subscriptions, including, without limitation, the amount that may be charged for a particular Swellcast Subscription and who may purchase your Swellcast Subscription (for example, a minimum age requirement or jurisdiction restriction with respect to a purchase of your Swellcast Subscription). We also have the right to stop the sale of your Swellcast Subscriptions altogether, in our sole discretion, for any reason (including in the event we reasonably believe you are in violation of this Agreement or to comply with applicable laws) and without any liability to you.
Revenue Share.
You will be eligible to receive a share of the revenue earned and actually received by Swell from the sale of your Swellcast Subscriptions to Subscribers (the "Revenue Share"). Subject to applicable law, such Revenue Share will be at a rate communicated to you by Swell, which will depend, in Swell's discretion, on several factors, including the total number and price of Swellcast Subscriptions purchased for access to your Premium Content and the fees and taxes (including, without limitation, sales, use, value added, goods and services, withholding or transaction taxes or other charges) assessed in the purchase of your Swellcast Subscriptions and in processing payments to you. Subject to applicable law, well may change the rate of the Revenue Share in its sole discretion, which will be communicated to you by Swell in writing. You expressly acknowledge that you will have no expectation or guarantees regarding any particular revenue percentage or amount that will apply, or continue to apply, over time. The Revenue Share will be remitted by Swell or a third-party payment processor to you. If payments are remitted by a third-party payment processor, you agree to be bound by the applicable third-party payment processor's terms of service. Unless otherwise pre-approved in writing by Swell, you may not permit a third party to receive payment on your behalf under this Agreement.
You further acknowledge and agree that notwithstanding the foregoing, subject to applicable law, no Revenue Share payment will be owed to you unless the Revenue Share payment for a given period meets $50 (the "Minimum Payment Amount"). All unpaid amounts below the Minimum Payment Amount will roll over to the next pay period until the Minimum Payment Amount has been met or exceeded, and for clarity, to the extent the Minimum Payment is never met, Swell shall, subject to applicable law, have no Revenue Share payment obligations to you. A dormancy fee may be charged at a rate of $10 (or, if the total remaining Minimum Payment Amount is less than $10, the total remaining amount) per year on any amounts held on your behalf that do not exceed the Minimum Payment Amount. You will not be entitled to, any interest on Revenue Share amounts that are delayed. All payments to you are based on Revenue Share amounts as determined by Swell and shall be final and binding.
Refunds, Set Offs, Disputes.
Where Revenue Share amounts paid to you become subject to a refund, for example in the case of a chargeback or a refund/credit process (including one that has been directed by a third party in response to a customer complaint, or to comply with applicable laws), we or our payment processor may suspend, set-off (against any future revenue share payments we decide to make to you), invoice you or otherwise recoup the amount of those payments previously made or credited to you (plus any associated fees) and remove such payments from your receipt history. You may dispute any Revenue Share payment made to you by notifying us by contacting Swell at: customerservice@swell.life within 30 days of the receipt of the payment you intend to dispute. Your failure to do this will constitute a waiver of any claim relating to the payment. For clarity, any disputes between you and Swell will be governed by Section 9 of this Agreement and Section 17 (“Dispute Resolution”) of the Terms.
Taxes.
You are responsible for paying applicable Taxes (as defined below), if any, due to taxing authorities arising from, or in connection with, your receipt of any payment of a share of the revenue earned by Swell from Swellcast Subscription sales. Swell (or its third-party payment provider) may deduct or withhold any Taxes that it may be legally obligated to deduct or withhold from any amounts payable to you, and payment to you as reduced by such deductions or withholdings will constitute full payment and settlement of the amounts payable under these Terms. Each party will provide the other party with any tax documentation reasonably necessary to make or receive payments hereunder. As used herein, "Taxes" means any United States and other jurisdictions' income, stamp, sales, use, value-added or other taxes, duties, charges, fees, deductions or withholdings. YOU AGREE THAT WE ARE NOT OBLIGATED TO DETERMINE WHETHER TAXES APPLY AND WE ARE NOT RESPONSIBLE TO COLLECT OR REMIT ANY TAXES ARISING FROM ANY TRANSACTION.
Premium Swellcaster Code of Conduct.
As a Premium Swellcaster, in addition to any prohibitions set forth in the Terms, you further agree that:
if you are using any artificial intelligence or algorithmic tools and technology to imitate a natural person in your Premium Content (whether fictional or actual), you agree to clearly disclose the use of such artificial intelligence technologies in this fashion (such as in the meta information you provide with the Premium Content where you have used such artificial intelligence technologies);
during and after your participation in the Program and the term of this Agreement, you will not take any action or make any statement that disparages or denigrates Swell, the Services, or Swell's other products or services, or otherwise injure the reputation of the foregoing; and
violate any law, infringe or violate the rights of any third party, or otherwise act in a manner that is deemed harassing, harmful, illegal, hateful, obscene or outside the spirit and intent of the Program.
Termination.
As a Premium Swellcaster, if you have any active Subscribers, then you may only terminate the Agreement with four (4) months prior notice to Swell, during which time Swell will make the necessary updates to your account and terminate your participation in the Program. For clarity, during such period, you are required to continue making Subscriber Benefits (including Premium Content) available to your Subscribers, and failure to do so will constitute a breach of this Agreement. We may suspend or terminate your participation in the Program at our sole discretion, at any time and without notice to you. You may terminate your participation in the Program at any time by contacting Swell at: customerservice@swell.life. Upon any termination, discontinuation or cancellation of the Program or your Premium Swellcaster status, the following Sections will survive: 5, 6, 7, and 8.
Confidentiality.
During and after the term of this Agreement, you shall not disclose any proprietary and/or non-public information of Swell provided to you or to which you have access in connection with the Program ("Confidential Information"), except as authorized in writing by Swell or as required by law or court order, provided: (a) you will promptly notify Swell in writing of the requirement for disclosure, and (b) disclose only that portion of the Confidential Information legally required. You shall promptly notify Swell of any actual or suspected misuse or unauthorized disclosure of Confidential Information. Upon termination of this Agreement and your participation in the Program, you will promptly destroy any Confidential Information in your possession or control.
Warranty Disclaimers.
THE PROGRAM IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Program will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Without limiting the above, we make no warranty regarding your eligibility to receive a Revenue Share, or the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information on the Program.
WITHOUT LIMITING THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE THAT YOUR PARTICIPATION IN THE PROGRAM AND YOUR OFFERING OF SWELLCAST SUBSCRIPTIONS IS AT YOUR SOLE RISK, AND SWELL MAY TERMINATE THE PROGRAM (AND YOUR OFFERING OF SWELLCAST SUBSCRIPTIONS) IN ITS SOLE DISCRETION. YOU EXPRESSLY ACKNOWLEDGE THAT SWELL DOES NOT CONTROL, ENDORSE OR ADOPT YOUR SWELLCAST SUBSCRIPTIONS (INCLUDING ANY PREMIUM CONTENT OR BENEFITS YOU OFFER TO SUBSCRIBERS).
Indemnity.
In addition to and without limiting your indemnification obligations in the Terms, you further agree to indemnify and hold Swell and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your participation in the Program, (b) your breach of this Agreement, (c) your offering of Swellcast Subscriptions to other users of the Services (including Subscribers), (d) your Premium Content and Subscriber Benefits, and (e) your violation of applicable law.
Disputes with Us.
We strongly believe that most disputes can be resolved informally. If you have any dispute or concern which you’d like to raise, please contact our support team at customerservice@swell.life. When you contact us, please provide a brief description of the nature and bases for your concerns, your contact information, and the specific relief you seek. The parties shall use their best efforts through this support process to settle any dispute. You and we agree that good faith participation in this informal process is required and must be completed as set forth above before either party can initiate arbitration as set forth in Section 17 of the Terms.
Disputes with Subscribers and Other Users.
You are solely responsible for promptly responding to any inquiries and requests that are sent to you related to your Swellcast Subscriptions, and for disputes relating to such Swellcast Subscriptions.