Swift App Inc.
Updated: May 12, 2023
Swift App, Inc. (“Swift,” “we” or “us“) offers an online scheduling software platform designed for businesses in the sports industry (the “Swift Platform“) through which Swift provides services designed specifically to optimize the operations of baseball facilities, sport facilities and other businesses (the “Swift Services“). For Enterprise Customers (“you” or “Enterprise Customer“), we offer access to Swift’s Services through the Swift Platform which includes our Websites and Applications. By creating a Swift Platform Account or using the Swift Services, you agree that you have read, understand, and accept all of the terms and conditions contained by this Enterprise Terms of Service (“Enterprise Terms“) and the Privacy Policy (“Privacy Policy” and together with these Enterprise Terms, this “Agreement“). If you do not agree to the terms of this Agreement, you must immediately stop your use of the Swift Platform and Swift Services. Capitalized terms used herein and not otherwise immediately defined are defined in Section I (“Definitions”) below.
We reserve the right to change the Enterprise Terms at any time. If we do so, the most up-to-date version of these Enterprise Terms will be located at www.runswiftapp.com/terms-of-service. The revised version will be effective at the time we post it. It is your responsibility to review and understand the latest version of these Enterprise Terms. If you do not agree with the new Enterprise Terms, you must reach out to support@runswiftapp.com to terminate your use of the Swift Platform and Swift Services and to close your Swift Platform Account. Your continued use of the Swift Platform and Swift Services in any way after a change to the Enterprise Terms effectively constitutes your acceptance to the updated Enterprise Terms.
This Agreement applies to any use or access to the Swift Platform and Swift Services by you and/or your Affiliates and is made effective (“Effective Date“) on the earlier of (a) the date you accept this Agreement via click through, clickwrap or other digitized method where you clicked a button or checked a box signifying “I agree” whether be it through a self-guided online sign-up, an Order Form or any other agreement indicating affirmative acceptance and (b) the date you, or your Affiliates’ first uses or accesses the Swift Platform and/or Swift Services.
I. DEFINITIONS
“Account Email” means the email you used to create and access your Swift Platform Account.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Swift Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Swift Services under this Agreement.
“Applications” means any web or mobile application through which the Swift Services are made available.
“Chargebacks” means a request that a cardholder files directly with its issuing bank to invalidate a transaction made with a credit or debit card.
“Client(s)” means a business or individual that schedules or purchases products or services from you through the Swift Services, that you market to, communicate with, or target through the Swift Services, or that otherwise interacts with you through the Swift Services, or that you authorize to use the Swift Services in connection with your business.
“Dispute” means a dispute between you and Swift with respect to the Swift Services (excluding Transactions).
“Initial Term” means the initial period of time agreed upon in the Order Form during which Swift is obligated to provide access to the Swift Platform and Swift Services.
“Linked Account” means any external account owned by you, Enterprise Customer, or your Affiliates designated by you in the Swift Platform as a depository account at a financial institution.
“Order Form” means the separate ordering document, invoice, online form or other agreement agreed to by Enterprise Customer that specifies the Swift Services purchased and the applicable Subscription Fees as well as any applicable one-time upfront fees. To the extent the terms of the Order Form and these Enterprise Terms conflict, the terms of the Order Form shall prevail solely with respect to the conflicting matter.
“Payment Processor” means the provider of Payment Processing Services, which may be a Third-Party Provider.
“Personal Information” has the same meaning as defined in the Privacy Policy.
“Primary Enterprise Contact” means the individual designated by the Enterprise Customer who has the authority to act on behalf of Enterprise Customer, including entering this Agreement or making changes to the Enterprise Customer’s Swift Platform Account.
“Renewal Term” means after the Initial Term of a Subscription Term, any subsequent term during which Swift is obligated to provide access to the Swift Platform and Swift Services. All Subscription Terms are subject to automatic renewal of the same length of time as the Initial Term, unless expressly stated otherwise in the Order Form.
“Swift Parties” is defined below in Section IX(c).
“Swift Platform Account” means the account created by the Primary Enterprise Contact to access the Swift Services on the Swift Platform.
“Subscription Package” means the bundle of functionality, services and features marketed as a package by Swift as may be described from time to time on any of the Websites.
“Subscription Fees” means the fees charged monthly to Enterprise Customer for access to the Swift Platform and Swift Services.
“Subscription Term” means the period of time during which Swift is obligated to provide access to the Swift Platform and Swift Services as described by the applicable Order Form and Enterprise Customer is bound to timely pay the Subscription Fees. Each Subscription Term includes the Initial Term and any Renewal Term after that.
“Third-Party Provider” means any third-party service provider in which Swift contracts with to provide services to Swift or on behalf of Swift in connection with providing the Swift Services.
“Third-Party Services” means a feature or functionality of the Swift Services that are provided by a Third-Party Provider and are subject to Third-Party Terms.
“Third-Party Terms” means any agreements, terms and conditions of a Third-Party Provider applicable to the services provided to Swift or on behalf of Swift in which Enterprise Customer must agree to in order to access certain of the Swift Services.
“Transaction” means the use of the Swift Services and/or Third-Party Services to initiate and/or complete a transfer of funds, including instructing a third-party to send or receive funds on your behalf, receiving a payment from a Client by a credit or debit card, or making a payment to a third-party using a credit or debit card, virtual account or other electronic means, in each case for a purpose permitted by this Agreement.
“Websites” means any website owned and operated by Swift through which the Swift Services are made available, including but not limited to, (a) www.runswiftapp.com, (b) admin.runswiftapp.com, and (c) book.runswiftapp.com.
II. SWIFT PLATFORM ACCOUNT
You must create an account as an Enterprise Customer to access the Swift Platform.
a. You Must Be Eligible to Sign Up: By creating a Swift Platform Account, the Primary Enterprise Contact that is agreeing to this Agreement represents and warrants the following:
i. Authority: The Primary Enterprise Contact has been duly authorized to agree to the terms of this Agreement, bind the Enterprise Customer and act on behalf of the Enterprise Customer to create the Swift Platform Account.
ii. Eligibility: The Primary Enterprise Contact is (i) at least 18 years of age, (ii) the Enterprise Customer is a commercial business operating via a legal corporate entity or, for any individuals, acting as a sole proprietor or a partnership.
iii. True and Correct Information: You represent that you have provided true, accurate, current and complete information about yourself and/or the Enterprise Customer as prompted by the Swift Platform’s registration process and as requested from time to time by Swift (such information, “Registration Data”). You further represent that in providing such Registration Data, you have not knowingly omitted or misrepresented any material facts or information and that you will promptly enter corrected or updated Registration Data via the Swift Platform, or otherwise advise us promptly in writing of any changes or updates to your Registration Data.
b. Our Privacy Policy Applies: We take data privacy very seriously. Swift’s policy regarding the collection, use, and sharing of Personal Information it gathers about you (and your Affiliates designated by you who may use or access the Swift Platform and Swift Services) is set forth in these Enterprise Terms and the Privacy Policy. As stated above, use of the Swift Platform and Swift Services is contingent upon you agreeing to the terms of the Privacy Policy. Please review the Privacy Policy very carefully. Further, in connection with your use of the Swift Platform and the Swift Services, Swift may collect, use, store, transfer or otherwise process Personal Information provided by you on your behalf.
c. We May Need to Create an Account with a Third-Party Provider On Your Behalf: During the signup process for the creation of your Swift Platform Account, we will ask you to provide Registration Data. To utilize certain Swift Services, we may need to create an account with a Third-Party Provider on your behalf. To the extent that you provide us with Registration Data for the purpose of creating an account with a Third-Party Provider, we will use such Registration Data in accordance with this Agreement, including for the purpose of assisting you in creating that account.
d. We May Need to Authenticate Your Identity: You agree to cooperate with all requests made by us in connection with your Swift Platform Account to identify you (and your Affiliates as well as any of your authorized representatives, directors, officers, etc.), authenticate your identity, or validate your funding sources or Transactions. Swift reserves the right to close, suspend, or limit access to your Swift Platform Account and/or the Swift Services in the event we are unable to obtain or verify such information. You authorize Swift, directly or through our Third-Party Providers, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you (and your Affiliates, as well as any of your authorized representatives, directors, officers, etc.) to provide date of birth, a taxpayer identification number and other information that will allow us to reasonably identity you, including requiring you to take steps to confirm ownership of your email address or Linked Account or verifying your information against third party databases or through other sources. We may also ask to see your (and your Affiliates as well as any of your authorized representatives, directors, officers, etc.) driver’s license, passport or other identifying documents at any time.
e. You Are Responsible for Safeguarding Your Account Email: Your Account Email you created to access the Swift Platform is specific to you as the Enterprise Customer. You agree that you will not allow any unauthorized person to use your Account Email to access or use the Swift Platform and Swift Services under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your Account Email and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. We are not liable for any harm caused by or related to the theft of your Account Email, your disclosure of your Account Email, or your authorization to allow another person to access or use the Swift Platform or Swift Services using your Account Email. You agree to immediately notify us of any unauthorized use of your Swift Platform Account or any other breach of security known to you. You further acknowledge that the complete privacy of your data and messages transmitted while using the Swift Services cannot be guaranteed.
f. We May Suspend or Terminate Your Swift Platform Account: Swift may terminate or suspend the Swift Platform Account and/or the Swift Services with or without notice to you for any reason, which may include, but are not limited to (1) failure to timely pay all fees when due, including any Subscription Fees; (2) violation of these Enterprise Terms or the Privacy Policy or any other terms and conditions or policies applicable to any of the Swift Websites or Swift Applications; (3) violation of any Third-Party Provider Terms; (4) abuse of Swift resources or attempt to gain unauthorized entry to Swift systems or its resources; (5) use or suspected use (as determined by Swift in its sole discretion) of the Swift Platform or the Swift Services in a manner inconsistent with the intended purpose, including, but not limited to, any illegal purpose, fraudulent activity or infringement of the rights of third parties (6) engagement in any of the Restricted Activities; (7) as required by law, regulation, court or governing agency order; or (8) as required by a Third-Party Provider. The termination of your access to Swift may be effective immediately. Swift shall not be liable to any user or other third party for termination of your Swift Platform Account. In the event of an account termination (by your or by Swift), any stored funds will be refunded to your designated Linked Account, mailed to you by check, or to you in a manner elected by Swift in a timely fashion.
g. If Need Be, You May Terminate Your Swift Platform Account: If you wish to close your Swift Platform Account, you must contact us at support@runswiftapp.com. Your Swift Platform Account may only be closed by you as the Primary Enterprise Contact or your authorized representative. If you contact us with such a request, we will take certain steps to verify your identity and you agree to cooperate in such verification. When your Swift Platform Account is closed, we will cancel any pending instructions you have given us. Notwithstanding the foregoing, you may NOT close your Swift Platform Account to evade amounts owed by you (including without liability for Chargebacks or payment of purchased proceeds and associated fees) or any investigation. When you close your Swift Platform Account, Swift may freeze your account and withhold all or a portion of the amounts due to you under the Agreement for up to 180 days (or such longer period as may be required by applicable law, regulation, or third party requirement, including as required by Third-Party Providers or Third-Party Terms) to protect Swift, its Affiliates, or a third party against any liability, including Chargebacks. You will remain liable for any obligations related to your Swift Platform Account (including Chargebacks) even after the Swift Platform Account is closed.
i. Effect of Termination: Termination of your Swift Platform Account shall mean termination of any Order Form and this Agreement as well as termination of access to the Swift Services. Swift will have no obligation to maintain your Swift Platform Account and any data associated therewith unless required by applicable law. Notwithstanding the foregoing, provided Enterprise Customer provides Swift with at least thirty (30) days’ notice prior to the termination date, Swift will use commercially reasonable efforts to assist Enterprise Customer for no more than thirty (30) days after the termination date in order to provide access to Enterprise Customer’s Client Data. After such thirty (30) day period, Swift shall have no obligation to retain or provide the Client Data to Enterprise Customer, except as required by applicable law.
j. We Determine Account Ownership: We don’t know the inner workings of your organization or the nature of your personal relationships. You agree that you will not request access to or information about an account that is not yours, and you will resolve any account-related disputes not caused by Swift directly with the other party. We decide who owns an account based on a number of factors, including the content in that account and the Primary Enterprise Contact listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we will require you to resolve the matter through proper channels outside of Swift. When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account until the dispute is properly resolved.
k. You Can Always Contact Us: If you have an inquiry regarding the Swift Platform or any of the Swift Services, please contact us at support@runswiftapp.com. Note, we may provide support through our Third-Party Providers.
III. THIRD PARTY PROVIDERS
a. We May Use Third-Party Providers to Deliver Aspects of the Swift Services: Certain functionality or features available through or in connection with the Swift Services may be provided by Third-Party Providers, and you may be required to enter into Third-Party Terms with such Third-Party Providers to enable the functionality or access such features. In these cases, we will refer to such functionality and features as “Third-Party Services”. For example, Swift may use a Third-Party Provider to provide Payment Processing Services, in that case, the Payment Processing Services would be considered a Third-Party Service and you will be required to enter into a payment processing agreement with the applicable Payment Processor to process Transactions using the Swift Platform.
b. You Must Agree to Third-Party Terms: Although Third-Party Services are part of the Swift Services, the Third-Party Providers, and NOT Swift, provide the Third-Party Services to you. The applicable Third-Party Terms will control over this Agreement solely with respect to the applicable Third-Party Services. Your use of the Third-Party Services shall be subject to (and you agree you are bound by) such Third-Party Terms as they may be modified from time to time by the Third-Party Provider. You acknowledge and agree that Swift has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party website or Third-Party Services or by any third party you may interact with through the Swift Services. USE OF THE THIRD-PARTY SERVICES IS AT YOUR OWN RISK. BY USING THE SWIFT SERVICES, YOU RELEASE AND HOLD US HARMLESS FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY OF THE FOREGOING THIRD-PARTY SERVICES OR OTHER THIRD-PARTY INTERACTIONS. Similarly, you acknowledge that the Third-Party Providers do not endorse and are not responsible for the Swift Services.
c. You Give Us Permission to Share Information with Third-Party Providers: You hereby authorize Swift to share any information you provide to us, including, but not limited to, Registration Data and Personal Information about Primary Customer Contact and Enterprise Customer, with any Third-Party Provider, and you authorize each Third-Party Provider to share your information with us, as may be reasonably required for you to use and access the Swift Services. If you grant express permission to a Third-Party Provider to take specific actions on your behalf, or access particular information about your Swift Platform Account, either through your use of the applicable Third-Party Service, or through your Swift Platform Account, you acknowledge and agree that Swift may disclose the information about your Swift Platform Account that is specifically authorized by you, to such Third-Party Provider. You also acknowledge and agree that granting permission to a Third-Party Provider to take specific actions on your behalf does not relieve you of any of your responsibilities under these Enterprise Terms. These specific authorizations are in addition to any collection and use of any information described in the Privacy Policy.
d. We Can Change Who We Choose as Your Third-Party Provider: Swift has the right to terminate its agreements with any of its Third-Party Providers or change any existing Third-Party Provider currently providing you with Third-Party Services with a new Third-Party Provider, at any time in its sole discretion. Such actions by Swift may cause you or require you to terminate any existing accounts created in connection with your access to the Swift Services at such Third-Party Providers. You agree to cooperate with Swift and the applicable Third-Party Providers impacted to either onboard or offboard as reasonably required to ensure continuation of your access to the Swift Services.
IV. SWIFT PLATFORM SUBSCRIPTION FEES; PAYMENT
a. You Must Pay Subscription Fees for Access to the Swift Platform: Access to your Swift Platform Account is contingent upon your timely payment and Swift’s receipt of your Subscription Fees. You can find the amount of your Subscription Fees and when they are due on your Order Form. If there is no Order Form, the Subscription Fees stated on our Websites apply.
b. We May Make Changes to Your Subscription Fees and Subscription Package: We agree to honor the Subscription Fees stated in your applicable Order Form for the Initial Term stated on the Order Form; provided however we may make changes to or discontinue certain of the Swift Services offered under a particular package. During any Renewal Term, we reserve the right to (i) either increase or decrease the amount of your Subscription Fees, (ii) make changes to or discontinue any Subscription Package, (iii) change the prices for Swift Services not elected on the Order Form, and (iv) convert any previously free, trial or beta offering of the Swift Services to a paid service subject to Subscription Fees.
c. You Must Provide a Valid Payment Method: During the signup process, you will provide us with valid payment information (e.g. debit, credit, ACH – or such payment method as may be requested and accepted from time to time by Swift) (your “Payment Method”) to facilitate payment of your Subscription Fees. You hereby authorize us to charge your Subscription Fees against your Payment Method and to process these payments using the valid Payment Method you have supplied. You will update or replace the information for any Payment Method that expires with information for a valid one. If your Payment Method is automatically replaced with a new Payment Method by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the Payment Method. Any individual designated by you to use your Payment Method represents and warrants that they are authorized to use that Payment Method, and that any and all charges may be billed to that Payment Method will not be rejected. If we are unable to process your Payment Method for any reason, we will give you notice via email or in-app and reserve the right to suspend or terminate your Swift Platform Account. All Subscription Fees must be paid in US Dollars or otherwise in the currency specified on the Order Form.
d. You Must Pay Us On Time: Your Subscription Fees are payable in advance. Unless otherwise specified on the Order Form, Subscription Fees are due monthly starting on the commencement date of the Subscription Term and due on the monthly anniversary date in each month thereafter for the length of the Subscription Term (the “Due Date”). If payment of your Subscription Fees is not received within five (5) business days after the Due Date, any such outstanding amounts may accrue interest at the lesser of (i) 5% of the outstanding balance per month, or (ii) the maximum interest permitted by applicable law, whichever is less, plus collection costs. If your Swift Platform Account is more than thirty (30) days past due, we will be entitled to either terminate or suspend your access to the Swift Platform and Swift Services, in our sole discretion.
e. Subscription Fees are Non-Cancelable and Non-Refundable: YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM (INCLUDING THE INITIAL TERM AND ANY RENEWAL TERM). Any cancellation or termination of any Order Form or of your Swift Platform Account does not absolve you from any of your payment obligations under this Agreement or any Order Form. All Subscription Fees paid are non-cancellable and non-refundable. Notwithstanding the above, if we terminate your Swift Platform Account without cause, we will refund you for a prorated portion of any prepaid amounts we received from you. Note, you won’t be entitled to a refund from us under any other circumstances.
f. You are Responsible for Taxes: The Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature. You agree to pay (i) all sales, use, excise, value added, and any other taxes which Enterprise Customer is required to pay to any governmental authority (and, at Swift’s request, provide evidence of such payment) and (ii) all sales, use, excise, value added, and any other taxes attributable to this Agreement and any Order Form. You are responsible for seeking your own independent tax advice with respect to the tax treatment for any payments due to Swift under this Agreement and any Order Form.
V. SWIFT SERVICES
Swift offers a variety of functions and features as part of the Swift Services. Additional terms may apply.
a. Payment Processing Services: The Swift Services include access to payment processing services (“Payment Processing Services”) which allow Enterprise Customer to accept and process credit or debit card payments from Clients for Enterprise Customer’s goods and services.
i. Additional Terms May Apply: At times, Swift may directly provide Payment Processing Services to Enterprise Customer which will require you to enter into a separate merchant agreement and documentation with Swift (and/or its acquiring bank) (the “Swift Sub-Merchant Agreement”). At other times, in Swift’s discretion, certain Payment Processing Services may be provided by a Third-Party Provider. In the event the Payment Processing Services provided to you are furnished by a Third-Party Provider, you hereby acknowledge and agree (i) Swift, may on your behalf, use information provided by you (which may include Personal Information) to create an account with such Third-Party Provider to provide the Payment Processing Services, (ii) you must enter into an agreement with such Third-Party Provider and be bound by any applicable Third-Party Terms and (iii) you authorize Swift and such Third-Party Provider to share Transaction data relating to your use of the Payment Processing Services. Further, you understand and agree that your settlement funds may be held by such a Third-Party Provider of Payment Processing Services, its acquiring bank or another financial institution (collectively, “TTP Processor”) in a pooled account. You hereby authorize Swift, at its discretion, to instruct TTP Processor to, instead of depositing Transaction funds into the TTP Processor’s pooled account, to deposit Transaction funds to a pooled account held for the benefit of you and other Enterprise Customers at any financial institution of Swift’s choosing (“Swift’s Sponsor Bank”) so that such funds may be combined and aggregated with other funds that are ultimately settled to you by Swift’s Sponsor Bank.
ii. Stripe as a Third-Party Provider: Subject to the provisions in paragraph (a)(i) above, in Swift’s sole discretion, you may be offered Payment Processing Services provided by Stripe, Inc. (“Stripe”) as a Third-Party Provider through Stripe’s product Stripe Connect. Such Payment Processing Services provided by Stripe are subject to the Stripe Services Agreement (the “SSA”) and the Stripe Connected Account Agreement (the “SCAA”). Swift, as the ‘Connect Platform’ (as defined in the SCAA), will create a Stripe Account on your behalf and provide instructions to Stripe to facilitate the transfer of funds to your Linked Account. By using Payment Processing Services provided by Stripe, you agree to be bound by the terms of the SSA and SCAA and acknowledge and agree that Swift is your Connect Platform for purposes thereunder.
iii. Payment Processing Fees: For each Transaction completed using the Payment Processing Services, Swift may deduct a fee (a “Platform Fee”) which will be assessed at the time the Transaction is processed and deducted from the funds deposited to your Linked Account. Such fees may include, but are not limited to, “Card Present,” “Card Not Present,” and “Booking Fees”. Please reference your Order Form or the Swift Sub-Merchant Agreement, if applicable, for confirmation of the Platform Fees.
iv. We are Not Liable For Transaction Losses: Swift is not liable for tax receipts, lost payments, identity theft, Chargebacks, fraudulent charges, identity theft, or refunds (“Transaction Losses”). By using the Services, you hereby release Swift from any liability arising from Transaction Losses. You will also use best efforts to promptly notify Swift of any Transaction Losses, which may affect the Swift Platform or Swift Services. Swift reserves the right, in its sole discretion, to terminate the Swift Platform Account that causes, or enables any other third-party to cause, Transaction Losses.
b. Social Media Integration: In certain instances, Swift allows you to integrate certain Swift Services with your social media accounts (e.g. Facebook, Instagram, Google Business) and other third party websites (“Social Media Platforms”) to enable you to reach your Clients. By choosing to integrate the Swift Services with any Social Media Platform, you hereby give us permission to share certain information, including Personal Information, with such Social Media Platform, to the extent necessary to complete the integration (please refer to our Privacy Policy for more information). Nevertheless, Swift is not responsible for the acts or omissions of any Social Media Platform, including its behavior, agencies, linked websites, applications, products, or services. Your use of any Social Media Platform to integrate with the Swift Services, and rights with respect to such Social Media Platform are solely between you and the applicable Social Media Platform. We are not responsible for the privacy, security or integrity of any Social Media Platform or the practices and policies of any Social Media Platform. We make no warranties of any kind and assume no liability of any kind for your use of any Social Media Platform.
c. Messaging Clients: Certain features of the Swift Services have the functionality to allow you to send messages and updates via e-mail, text message, or push notification to either an individual or a customized group of your Clients (“Messaging Features”). When a Client books an appointment using the Swift Platform and enters their e-mail and/or mobile phone number, the Client is aware and consenting to the fact that Swift may send automated e-mail and/or text messages to the Client about the appointment and purchases made as part of the transaction (“Transactional Messages”). In the event you, your Affiliates use any of the Messaging Features to send non-Swift generated Transactional Messages or messages unrelated to a particular transaction (“Marketing Messages”), you are responsible for ensuring you have obtained the requisite level of consent from each Client receiving such message as necessary to comply with applicable law. Any Transactional Messages or Marketing Messages originated by you and your use of the Messaging Features are subject to these Enterprise Terms and the Privacy Policy.
i. Loyalty/Membership Programs: You may use the Swift Platform to facilitate, market and sell loyalty programs to your Clients. If you offer a loyalty or membership program to Clients, you understand and agree that you (and not Swift) are responsible for ensuring that your program and any associated rewards are compliant with applicable federal and state laws, including laws governing prepaid services and special offers such as rebates and coupons and for any disputes or related issues. You represent and warrant that any loyalty or membership program offered to Clients through the Swift Platform shall comply with all applicable laws and that each Client will be presented with all required terms and conditions and cancellation policy applicable to such program.
j. We Can Make Changes to the Swift Services: We reserve the right to change, suspend or discontinue any aspect of the Swift Services at any time, including hours of operation or availability of the Swift Services or any Swift Services feature, without notice and without liability. We also reserve the right to impose limits on certain Swift Services features or restrict access to some or all of the Swift Services in our sole discretion, without notice and without liability. Without limiting the foregoing, you acknowledge that the operation of the Swift Platform and Swift Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Swift shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Swift Services. Swift has no obligation to maintain or update the Swift Platform or the Swift Services or to continue producing or releasing new versions of the Swift Platform or the Swift Services.
VI. LICENSES; INTELLECTUAL PROPERTY
a. Swift’s IP; Swift’s License to You: All content included in or made available through the Swift Platform or any Swift Services including all text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, Websites, and Applications (collectively, the “Swift IP”) is the property of Swift or its Affiliates, or its content providers; protected by Canadian and international copyright laws; and Swift owns all right, title and interest therein. Subject to the terms and conditions of this Agreement, Swift hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use and access the Swift Platform, Swift Services and Swift IP as specified on the applicable Order Form during the Subscription Term for the sole purpose of lawfully operating your business. You agree you will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Swift Platform, Swift Services or Swift IP, in any manner not expressly permitted by this Agreement.
b. Enterprise Customer IP; Your License to Us: Use of the Swift Platform and Swift Services may require you to provide Swift access to certain content, including, but not limited to business name, trademarks, text, graphics, photographs (including image and likeness of individuals), logos, button icons, images, audio clips, digital downloads, data (including any personal information), data compilations, Client Data, applications and websites (collectively, “Enterprise Customer IP”). You hereby grant Swift and its Affiliates, a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (i) use the Enterprise Customer IP to display, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, as well as modify, alter, edit, adapt create derivative works, license, or otherwise only as necessary to provide the Swift Services to you and/or as otherwise permitted by this Agreement and (ii) for Swift’s marketing and promotional purposes. You represent and warrant that: (i) Enterprise Customer owns or has otherwise obtained all necessary consents, rights, releases, and permissions (including from your Affiliates) to submit all Enterprise Customer IP to Swift and to grant the rights granted to Swift in this Agreement and (ii) the Enterprise Customer IP and its submission and use as you authorize in this Agreement will not violate (1) any applicable law, (2) any third-party intellectual property, privacy, publicity, or other rights, or (3) any of your or third-party policies or terms governing your Enterprise Customer IP. Other than the rights expressly granted in this Agreement, Swift shall have no other rights with respect to the Enterprise Customer IP and Enterprise Customer shall retain all right, title and interest therein.
c. Feedback; Your License to Us: You may provide or we may ask you to provide suggestions, comments, input or other feedback (“Feedback”) regarding the Swift Platform and Swift Services. If you provide us with any Feedback, then you grant us a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as we see fit. Any Feedback you choose to provide is given entirely voluntarily. You understand that you will not receive any compensation for your Feedback, and that we may use any Feedback you provide to improve the Swift Platform and Swift Service or to develop new features and services.
VII. RESTRICTED ACTIVITIES; FRAUD; UNAUTHORIZED TRANSACTIONS
a. Restricted Activities: During the term of this Agreement, in connection with your use of the Swift Platform and Swift Services, you will not engage in any of the following (collectively, “Restricted Activities”):
i. Breach these Enterprise Terms, or any other agreement or policy that you have agreed to with Swift, a Third-Party Provider, or other third party;
ii. Violate any law, statute, ordinance, or regulation;
iii. Use the Swift Services in connection with any Transactions to purchase or sell, or to facilitate the purchase or sale of, illegal goods or services or any goods or services prohibited by the payment networks or Third-Party Providers, including, but not limited to: unlawful sexually oriented materials or services, counterfeit products, unlawful gambling activities, fraud, money laundering, the funding of terrorist organizations, or the unlawful purchase or sale of tobacco, firearms, prescription drugs, or other controlled substances;
iv. Infringe Swift’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
v. Send spam (via email, phone or text)
vi. Use purchased, rented, or third-party Contact Lists
vii. Act in a manner that is defamatory, libelous, threatening or harassing to the Swift Parties;
viii. Provide false, inaccurate or misleading information;
ix. Engage in debt-collection activities;
x. Instruct us to send or receive what we reasonably believe to be potentially fraudulent funds on your behalf;
xi. Refuse to cooperate in an investigation or refuse to provide confirmation of your identity or any information you provide to us;
xii. Attempt to “double-dip” during the course of a Dispute, Chargeback, reversal or other investigation, with “double-dipping” being defined as intentionally or knowingly receiving or intentionally or knowingly attempting to receive funds from both Swift and a merchant or bank for the same Transaction;
xiii. Control a Swift Platform Account that is linked to another Swift Platform Account that has engaged in any of these Restricted Activities;
xiv. Conduct your business or use the Swift Services in a manner that in Swift’s judgment is likely to result in or may result in complaints, Disputes, Chargebacks, reversals, fees, fines, penalties or other liability to Swift, other third parties or you;
xv. Engage in “refund abuse” in connection with the use of the Swift Services
xvi. Use your Swift Platform Account or the Swift Services in a manner that Swift, Visa, MasterCard, Discover, American Express or any other electronic funds transfer network reasonably believes to be an abuse of the card system or a violation of card association or network rules;
xvii. Allow your Swift Platform Account to have a negative balance;
xviii. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure (including, without limitation, through the use of any APIs that we may provide); perform penetration testing, facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; use an anonymizing proxy; use any network monitoring or discovery software, use any robot, spider, other automatic device, or manual process to determine architecture, monitor or copy the Swift Websites, Applications or overall Swift Platform without our prior written permission; or interfere or attempt to interfere with the Swift Services;
xix. Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers;
xx. Circumvent any Swift policy or determinations about your Swift Platform Account such as temporary or indefinite suspensions or other Swift Platform Account holds, limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional Swift Platform Accounts when a Swift Platform Account has a negative balance or has been restricted, suspended or otherwise limited; creating new or additional Swift Platform Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s Swift Platform Account;
xxi. Transfer or sell access to your Swift Platform Account or Account Email to any other party;
xxii. Harass our employees, agents, or other Swift Enterprise Customers and Clients;
xxiii. Use the Swift Services to fund or remit payroll or payroll deposits;
xxiv. Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Swift Services;
xxv. Violate the security of any computer network, or crack any passwords or security encryption codes;
xxvi. Use the Swift Services in a manner that we believe may be a violation of any applicable electronic payment network rules, card association or network rules, National Automated Clearing House Association rules or applicable law; or
xxvii. Cause or facilitate any third-party to engage in the Restricted Activities.
If your Swift Platform Account is used to conduct (or to attempt to conduct) Transactions that we believe are not permitted by these Enterprise Terms (such as one of the activities set forth above) or applicable law, we may, in our sole discretion, and without waiving any of our rights, freeze, close, suspend, terminate or limit your access to the Swift Services. We reserve the right to refuse to facilitate any Transaction, except as may be prohibited by applicable Third-Party Terms.
b. Fraud Monitoring: Swift and its Third-Party Providers may monitor your Transactions for the purpose of determining fraudulent activity and whether you are in good standing with Swift. Based on our methods, which are subject to change without notice, Swift may decide to suspend your Swift Platform Account, or in other ways limit your privileges. Swift will use all available information to help combat fraud on our system. Without limiting the foregoing, Swift may, in its sole discretion, or at the direction of an applicable Third-Party Provider, delay sending instructions on your behalf or withhold funds to offset Chargebacks or other potential Transaction Losses if we have reason to believe that your instructions may involve fraud or misconduct, or violate applicable law, these Enterprise Terms, or applicable Swift policies, as determined in Swift’s sole and absolute discretion. If you believe your Swift Platform Account has been opened or used in an unauthorized manner in connection with a Transaction, please contact us at support@runswiftapp.com.
c. Unauthorized Transactions: If you become aware of any unauthorized charge occurring through your Swift Platform Account, you should contact Swift customer support at support@runswiftapp.com as soon as possible. To the extent that the charge relates to Third-Party Services, you should contact the applicable Third-Party Provider as identified in the applicable Third Party Terms. If Swift suspects unauthorized Transactions, Swift reserves the right to suspend your use of the Swift Services, except as prohibited by the applicable Third-Party Terms.
VIII. CONFIDENTIALITY
a. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, Client Data, pricing, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials of Disclosing Party and its affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of the Agreement or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
b. Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in our case, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under these Terms. Receiving Party is responsible for its Representatives’ compliance with this Section. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
c. Either party may disclose the confidential information it got from the other party if required by a law, regulation, subpoena, or a court order, if the parties fulfill certain conditions, such as providing notice (if legally allowed) and reasonable cooperation. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.
IX. WARRANTIES & DISCLAIMERS
a. CLIENT DISCLAIMER: Swift does not have control over the acts or omissions of your Clients. Swift does not and is not responsible for screening Clients or verifying any information about Clients. Swift does not assume any responsibility for the accuracy or reliability of any information provided by your Clients on or through the Swift Platform. YOU ARE RESPONSIBLE FOR YOUR INTERACTIONS WITH YOUR CLIENTS THROUGH THE SWIFT PLATFORM.
b. TAXES DISCLAIMER: Swift is not responsible for any taxes that may apply to the goods and services you provide to your Clients and the payments you make or receive. Swift is not responsible for determining whether taxes apply to your Transactions. Swift is not responsible for the collection, reporting and remittance of the correct taxes arising from any Transaction. YOU ARE RESPONSIBLE FOR ANY TAXES THAT MAY APPLY TO THE GOODS AND SERVICES YOU PROVIDE TO YOUR CLIENTS AND THE PAYMENTS YOU MAKE OR RECEIVE. YOU ARE RESPONSIBLE FOR DETERMINING WHETHER TAXES APPLY TO YOUR TRANSACTIONS. YOU ARE RESPONSIBLE FOR THE COLLECTION, REPORTING AND REMITTANCE OF THE CORRECT TAXES ARISING FROM ANY TRANSACTION TO THE APPROPRIATE TAX AUTHORITY. YOU HEREBY AGREE TO COMPLY WITH ANY AND ALL APPLICABLE TAX LAWS IN CONNECTION WITH YOUR USE OF THE SWIFT SERVICES, INCLUDING WITHOUT LIMITATION, THE REPORTING AND PAYMENT OF ANY TAXES ARISING IN CONNECTION WITH TRANSACTIONS MADE THROUGH THE SWIFT SERVICES (INCLUDING THE PAYMENT PROCESSING SERVICES), IF ANY.
c. NO WARRANTY; DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SWIFT PLATFORM AND THE SWIFT SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. SWIFT AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “SWIFT PARTIES”), MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER FOR THE SWIFT PLATFORM, SWIFT SERVICES OR THE CONTENT, MATERIALS, INFORMATION AND FUNCTIONS USED OR MADE ACCESSIBLE BY THE SWIFT PLATFORM AND SWIFT SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SWIFT PLATFORM AND SWIFT SERVICES. THE SWIFT PARTIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SWIFT PLATFORM AND SWIFT SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR FREE OR THAT THE SWIFT PLATFORM AND SWIFT SERVICES WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SWIFT PLATFORM AND SWIFT SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE SWIFT PARTIES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SWIFT SERVICES. THE SWIFT PARTIES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
X. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Swift, the Swift Parties, and any applicable Third-Party Providers from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including but not limited to attorney’s fees) arising from or relating to: (a) your breach of this Agreement, (b) your or your employees’ or agents’ improper use of the Swift Platform, Swift Services or Third-Party Services, (c) your or your employees’ or agents’ violation of any law, regulation, industry standard, or the rights of a third party (including, but not limited to, infringement of any intellectual property rights of third parties, and failure to obtain requisite consents under any privacy, data protection or consumer protection law), (d) Transactions, (e) content that you post or transmit, (f) the goods and services you provide to your Clients, and (g) any agreement between you and a third party. You further agree to hold the above parties harmless from losses arising out of actions taken or omitted in good faith by us in reliance upon instructions from you.
XI. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SWIFT, THE SWIFT PARTIES AND/OR THE THIRD-PARTY PROVIDERS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SWIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
ADDITIONALLY, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SWIFT, THE SWIFT PARTIES AND/OR THE THIRD-PARTY PROVIDERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS AND DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SWIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) YOUR USE OF OR YOUR INABILITY TO USE THE SWIFT PLATFORM OR THE SWIFT SERVICES; (2) DELAYS OR DISRUPTIONS IN THE SWIFT SERVICES (INCLUDING DELAYS IN FUNDING ACCOUNTS OR PAYMENT PROCESSING OR OTHERISE FAILED TRANSACTIONS); (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE SWIFT PLATFORM OR SWIFT SERVICES; (4) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE SWIFT PLATFORM OR SWIFT SERVICES; (5) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD-PARTIES (INCLUDING WITHOUT LIMITATION THIRD-PARTY SERVICES); (6) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR SWIFT PLATFORM ACCOUNT; (7) YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THESE ENTERPRISE TERMS OR SWIFT’S POLICIES. SWIFT RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THESE ENTERPRISE TERMS AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
TO THE FULLEST EXTENT PERMITTED BY LAW, SWIFT’S MAXIMUM AGGREGATE LIABILITY TO YOU IN ANY CIRCUMSTANCE ARISING OUT OF AND/OR RELATING TO THE SWIFT PLATFORM AND THE SWIFT SERVICES OR THESE TERMS IS LIMITED TO THE LESSER OF THE SUBSCRIPTION FEES PAID BY YOU, IF ANY, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE ACCRUAL OF LIABILITY OR ONE HUNDRED DOLLARS (US$100.00).
XII. MISCELLANEOUS
a. Entire Agreement: These Enterprise Terms, the Privacy Policy, any Order Form, as well as any additional terms, schedules, appendixes, exhibits, documents, or policies referenced herein, set forth the entire understanding between you and Swift with respect to the Swift Platform and the Swift Services and supersede any prior agreements between you and Swift with respect to the matters set forth herein. In the event of a conflict between the Order Form and these Enterprise Terms, the Order Form shall control. In the event of a conflict between these Enterprise Terms and the Website Terms of Service, these Enterprise Terms will control.
b. Severability: Unless stated otherwise in these Enterprise Terms, if any provision of these Enterprise Terms is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be struck and the remaining provisions shall be enforced.
c. Survival: All provisions of this Agreement, which by their nature should survive the expiration or termination of this Agreement, including without limitation, sections pertaining to Warranties & Disclaimers, Indemnification, Limitation of Liability, representations made by you and debts owed to Swift, will survive the termination of this Agreement.
d. No Waiver: If we fail to enforce any of our rights under these Enterprise Terms, or applicable laws, it shall not be deemed to constitute a waiver of such right.
e. Assignment: You may not transfer or assign any rights or obligations you have under this Agreement without Swift’s prior written consent. Swift reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
f. No Third-Party Beneficiaries: No third-party shall have any rights to enforce this Agreement.
g. Relationship of the Parties: Swift is an independent contractor for all purposes. Nothing in this Agreement is intended to, and shall not be construed to, create any joint venture, partnership, employer-employee, agency or franchisor-franchisee relationship between you and Swift.
h. Governing Law: These Enterprise Terms and the relationship between you and Swift shall be governed by the laws of Canada without regard to its conflict of law provisions. Other than as provided with respect to arbitration, you and Swift agree to submit to the personal and exclusive jurisdiction of the courts located in Toronto, Canada.
i. Jury Waiver: EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS, INCLUDING ANY COMMON LAW OR STATUTORY OR OTHER CLAIMS UNDER LOCAL, STATE/PROVINCIAL, OR FEDERAL LAW.
j. Time Limitations: You and Swift both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Enterprise Terms must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
l. Disputes; Arbitration:
i. Disputes; Mandatory Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Swift, you agree to try to resolve the Dispute informally by contacting us at support@runswiftapp.com. We will try to resolve the Dispute by contacting you via email, but if we cannot resolve the Dispute within thirty (30) days of submission, you and/or Swift agree to resolve any claims related to these Enterprise Terms through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate’ section below.
ii. Arbitration Agreement: Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the Canadian Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any Disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Toronto, Canada or any other location we agree to. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings. THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
iii. Exceptions to Agreement to Arbitrate: Either you and/or Swift may assert claims, if it qualifies, in small claims court in Toronto, Canada. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use and/or abuse of the Swift Platform, Swift Services, breach of Swift’s confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal Dispute-resolution process described herein.
m. Force Majeure: Swift will not be held liable for any delays or failure in performance of any part of the Swift Platform or Swift Services, from any cause beyond our reasonable control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, pandemics, nuclear accidents, zombie apocalypse, floods, labor unrest, strikes, telecommunications failures, utility failures, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers. Nothing in this section will affect or excuse your liabilities and obligations under these Enterprise Terms including, but not limited to, your payment obligations hereunder.
n. Electronic Signatures: You agree to the use of electronic signatures (e.g. via PactSafe, Docusign, Hello Sign, Adobe Sign, or otherwise) to enter into this Agreement, Order Forms or otherwise. Further, you hereby waive any rights or requirements under any laws or regulations that require an original ‘wet signature’ (non-digital) or delivery or retention of non-digital records, to the extent permitted under applicable law.
o. Electronic Communications: You agree and consent to electronic receipt of all communications that we provide in connection with your Swift Platform Account and the Swift Services. You also agree that your electronic consent has and will have the same legal effect as a physical signature. Since the Swift Services are an electronic service, you agree that Swift has no obligation to send, and you have no right to receive, communications in paper form, unless otherwise required by applicable law. We will provide communications to you by making them available through your Swift Platform Account or by emailing them to you at the primary email address listed in your Swift Platform Account profile.
p. Notices: As noted above relating to the electronic communications authorized in Section XIV(o), you acknowledge and agree that any notices provided by Swift as required by law or pursuant to the terms of this Agreement may be delivered to you by making them available through your Swift Platform Account or by emailing them to you at the primary email address listed in your Swift Platform Account profile. You hereby consent to receive notice from Swift through these electronic means, and such notices shall be deemed effective when sent on the next immediate business day. Any notices to Swift must be delivered via email to support@runswiftapp.com with a hard copy to follow via overnight courier to Swift App, Inc. 2000 Argentia Road Plaza 3, Suite 400, Mississauga, Ontario L5N 1V9, Attn: Legal Department.
q. Support: For more information, insight, and articles about utilizing the Swift Platform and Swift Services, please feel free to reach out to us directly at support@runswiftapp.com.
