Terms of Use

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY

This Service Agreement ("Agreement") is entered into by and between SwiftSku, Inc., an Alabama corporation ("SwiftSku") and the party or parties accepting this Agreement ("Customer"). This Agreement appearing at www.swiftsku.com (or such other URL or access as SwiftSku may provide) and as modified from time to time governs the rights and obligations of the Customer and of SwiftSku in connection with Customer’s subscription to and use of SwiftSku’s Services and/or the SwiftSku IQ Module and is effective as of the date Customer clicks "I accept the terms in the ServiceAgreement" (the "Effective Date").

BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS,USING THE SERVICES, OR INSTALLING THE SWIFTSKU IQ MODULE CUSTOMERACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, HAS REVIEWED ANDACCEPTED THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. THEPERSON ACCEPTING THE SERVICE AGREEMENT ON CUSTOMER’S BEHALFREPRESENTS AND WARRANTS THAT HE OR SHE IS NOT A MINOR OR INCOMPETENTAND EITHER IS THE CUSTOMER, OR IS CUSTOMER’S AUTHORIZED AGENT WITHAUTHORITY TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THECUSTOMER. In consideration of the foregoing, the parties agree as follows:

I. DEFINITIONS

• “Authorized User” means any natural person that Customer authorizes to use theServices in connection with Customer’s account.
• “Customer Reports” means any analysis provided in conjunction with the Serviceswhich Customer may remotely access, view and download at www.swiftsku.com (or such other URL or access as SwiftSku may provide).
• “Documentation” means any user manuals, online resources, ancillary documents,terms, schedules, disclosures, policies, advertising materials or other ancillarydocumentation made available to Customer with respect to the Services, as may beamended or added to from time to time by SwiftSku, including documentation in anyformat or language.
• “Enterprise Data” means all information collected, processed or stored by, ortransmitted to, SwiftSku related to Customer’s use of the Services and any associated transactions, provided, however, that such data shall not contain complete payment card numbers and expiration dates. As such, Enterprise Data is that data recorded in, from, or for Customer’s store(s), and includes: retailer or syndicated data; direct or panel data; store, transaction, shopper, product and service data; raw data; metadata; aggregated or processed information; logins and IP addresses; point of sale scanner or website transaction data for UPC- and/or EAN-coded or PLU product purchases; private label data; register data; pharmacy data; Customer categories and inputs; graphical, text and numerical data; geographical, mapping and location data; names, addresses, account numbers, discounts, proofs of purchase; all data associated with “click-and-collect”transactions or transactions of items ordered and/or purchased online and purchased and/or delivered at a physical Customer store; timestamps; customer and employee identifying information; inventory, units sold and pricing information; and Third Party rebates, rewards, incentives and loyalty programs.
• “Indemnified SwiftSku Parties” means SwiftSku, its officers, directors, employees,parents, subsidiaries, shareholders, successors, assigns and Third Parties.
• “Services” means the services that SwiftSku will provide to Customer under thisAgreement.
• “System ” means SwiftSku's proprietary system of servers, hardware, software, webpages, applications, devices, technology, or other properties or resources, including any fixes, updates or upgrades and specifically including the SwiftSku IQ Module, which are used to provide the Services to Customer.
• “Term ” is defined in Section IX, “Term and Termination,” below.
• “Third Party” or “Third Parties ”  indicate any and all vendors, processors, suppliers,partners, agents, affiliates, contractors or subcontractors of SwiftSku, or any other entities or third parties which SwiftSku in its absolute discretion deems necessary or convenient to the security, efficiency, effectiveness, maintenance, delivery, development or deployment of the System or Services.
• The words "include" and "including" mean "including but not limited to."

II. THE SYSTEM

• Use of the System. During the Term, Customer may access and use the System to receive the Services pursuant to SwiftSku's policies posted on its websiteat www.SwiftSku.com, as such policies may be updated from time to time.
• Documentation. Customer may reproduce and use the Documentation solely asnecessary to support its Authorized Users’ use of the System.
• System Revisions SwiftSku may revise System features and functions at any time,which includes removal ofsuch features and functions. If any such revision to the System materially reduces features or functionality of the Services provided pursuant to this Agreement, Customer may within 30 days of notice of the revision terminate this Agreement without cause.
• Consent to Electronic Communication. Customer acknowledges, agrees and herebygives its consent that SwiftSku may communicate with and provide legal notice toCustomer via communication through WhatsApp, SMS text messages, email, or website login related to Customer’s use of the Services, including Service pricing and changes to pricing, notices of non-payment, issues preventing the Services from functioning properly in Customer’s stores (e.g. internet connectivity issues), notices of noncompliance, and notices of automated renewals. Additionally, SwiftSku may amend, update or otherwise change this Agreement without Customer’s written consent by publication to this website, and such notice constitutes and shall be deemed notice to Customer of any and all such amendments, updates and changes.

III. DELIVERY AND USE OF ENTERPRISE DATA

• Delivery of Enterprise Data.  Customer shall obtain and maintain active, workinginternet connection for the SwiftSku IQ Module and shall ensure that Enterprise Datarelated to Customer stores is provided to SwiftSku in real time.
• License to and Use of Enterprise Data.

• Customer hereby grants SwiftSku a non-exclusive, transferable, andsublicensable royalty-free, worldwide license to use, reproduce, release, modify, create derivative works of, display, disclose, perform and transmit the Enterprise Data to provide Services to Customer and for SwiftSku’ own commercial purposes; provided, however, that SwiftSku will not sell, license, or furnish Enterprise Data which has not been anonymized with respect to Customer store(s), to parties other than Third Parties, as defined herein, or as authorized by Customer, or as required by law or regulation. Under this license Customer hereby (i) authorizes SwiftSku to process the Enterprise Data into either a form necessary for providing the Services or an anonymized and aggregated form for provision to third parties ("SwiftSku Processed Data" and such modification and use, to “Process”), (ii) authorizes SwiftSku to sublicense the Enterprise Data to any and all Third Parties to use, reproduce, release, modify, create derivative works of, display, disclose, perform and transmit the Enterprise Data, and (iii) authorizes any and all Third Parties to Process the Enterprise Data ("Third Party Processed Data"). Customer agrees that SwiftSku shall own SwiftSku Processed Data, Enterprise Data and Third Party Processed Data. SwiftSku will not sell, license, or furnish SwiftSku Processed Data or Enterprise Data which has not been anonymized with respect to Customer store(s), to parties other than Third Parties, or as authorized by Customer, or as required by law or regulation unless otherwise mutually agreed in writing. Customer hereby assigns all of its right, title, andinterest in and to SwiftSku Processed Data and any Third Party Processed Datato SwiftSku, provided, however, that SwiftSku and such Third Party may mutually agree otherwise regarding Third Party Processed Data in writing.
• SwiftSku and Third Parties may generally use, collect, measure, analyze, filter, derive, integrate, correlate, truncate, aggregate, parse, develop and validate algorithms and models, and deploy artificial intelligence regarding all Enterprise Data together with any and all other data available to perform statistical or cohort analysis, detect anomalies, derive conclusions, generate recommendations, create reports, advise and assist Customer, coordinate with Third Parties, and to develop, create, revise and refine SwiftSku’s hardware, software, analyses, algorithms and artificial intelligence. In so doing, SwiftSku and Third Parties may collect, use and disclose to Customer and to one another any and all Enterprise Data for their internal business use, commercial purposes and in performance of the Services. SwiftSku will not sell, license, or furnish Enterprise Data which has not been anonymized with respect to Customer store(s), to parties other than Third Parties, or as authorized by Customer, or as required by law or regulation.
• Customer agrees and authorizes and grants SwiftSku and Third Parties full and complete rights to (i) conduct any and all of the activities set forth in the above 3.2(c) with respect to all Enterprise Data on an ongoing basis, (ii) to contact Customer (directly or through Customer’s distributor(s)) for marketing purposes, and (iii) to automatically change product pricing and to obtain discounts and rebates in providing Services to Customer.

IV. CUSTOMER'S RESPONSIBILITIES & RESTRICTIONS

• Security Deposit. Apart from payments of all fees associated with the use of the Services, unless waived by SwiftSku, Customer shall make a security deposit to SwiftSku in the amount of $150.00 associated with possession of the SwiftSku IQ Module throughout the Term. Such security deposit shall be refunded to Customer upon SwiftSku’s receipt of the SwiftSku IQ Module, undamaged, from Customer within fifteen (15) days of notification of non-renewal or other termination of this Agreement, provided that Customer has otherwise complied with all Customer obligations and restrictions as set forth in this Agreement.
• Customer Account. To register for the Service, Customer must complete the registration process by providing SwiftSku with current, complete and accurate credentials and further information as prompted by the registration form, including Customer e-mail address and phone number.
• Delivery of Enterprise Data; Accuracy and Completeness. Functionality and qualityof the Services and of any Additional Features requires consistent delivery of accurate and precise data in real time over time. Customer shall obtain and maintain active, working internet connection for the SwiftSku IQ Module, by which Enterprise Data related to Customer stores will be provided to SwiftSku. Enterprise Data and all input, delivery, handling, processing of Enterprise Data may contain errors and omissions. It is Customer’s responsibility to ensure that data comprising Enterprise Data, including pricing data, is complete, accurate and available.
• Acceptable Use. Customer will not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section, including by Authorized Users, SwiftSku may suspend Customer's access to the System without advance notice, in addition to such other remedies as SwiftSku may have.
• Unauthorized Access. Customer will prevent unauthorized access to the System, which includes protecting its passwords and other log-in information. Customer will notify SwiftSku immediately of any known or suspected unauthorized use of the System or breach of security and will use best efforts to stop and mitigate said breach. Customer is solely and fully responsible for any and all activities, whether by Customer and or any third party that occur under Customer accounts. Customer will notify SwiftSku immediately upon learning of any unauthorized use of a Customer account or any other breach of security.
• Compliance with Laws. In its use of the System, Customer will comply with allapplicable laws, including laws governing the protection of personally identifiableinformation, proprietary information and trade secrets and any other laws, guidance or industry standards applicable to the protection of Enterprise Data. Customer recognizes that not all features and functionality of the Services may comply with the laws of its jurisdiction and agrees to ensure that its own use of the System complies with applicable law.
• Authorized Users & System Access. Customer is responsible and liable for: (a) Authorized User’s use of the System, including unauthorized conduct and any conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer's or any of its Authorized Users’ credentials, whether authorized or unauthorized.
• Nonexclusive License. Subject to the terms and conditions of this Agreement, (a)SwiftSku grants Customer a limited, revocable, non-exclusive, non-sublicensable license to install and use the SwiftSku IQ Module solely as necessary for Customer to use the Services; and (b) Customer may remotely access, view and download Customer Reports at www.swiftsku.com (or such other URL or access as SwiftSku may provide). Customer will not (and Customer will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the System or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover System source code, except as expressly permitted by the law in effect in the jurisdiction in which Customer is located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the System, the Documentation or the Services; (iv) remove any proprietary notices or labels on the System, Documentation or Services; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the System or Services; or (vi) use data provided by SwiftSku pursuant to the Services for purposes other than generating, viewing, and downloading Customer Reports. Customer will comply with all applicable laws and regulations in Customer’s use of and access to the System, Documentation, Services and Customer Reports.
• Payment. Customer agrees to make timely payments of all fees associated with the use of the Services. Customer agrees to provide all information, documentation andcredentials on an accurate and timely basis as needed for invoicing, payment, account and funds verification or other transactional function as specified by SwiftSku and its Third Party payment and processing vendors. Customer authorizes SwiftSku (or its Third Party payment and processing vendors) to process any and all information necessary to effect such payments. Customer recognizes that the Services may have recurring payment obligations and that Customer’s account or payment method may be charged on a recurring basis at the beginning of each payment period for the next period’s Services. A fee of twenty dollars ($20) will be assessed to each accounts not paid current when due, provided, however, that such fee will not exceed the maximum amount permitted by law. SwiftSku may change its fees and payment policies for the Services from time to time including the addition of costs or other fees charged to SwiftSku by Third Parties. The changes to the fees or payment policies are effective upon Customer acceptance of those changes which will be posted at www.SwiftSku.com or communicated electronically to Customer. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstandingbalance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys' fees) incurred by SwiftSku will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with the Customer’s account.
• Authorization; Automated Price Book Updates. Customer authorizes SwiftSku toenroll Customer in automated price book update systems for products of Third Parties. Such enrollments are NOT covered under the “Services” or this Agreement but are functions of relationships which may be held by SwiftSku and/or Customer with the associated Third Party vendors. It is Customer’s responsibility to ensure the timeliness and accuracy of any and all Enterprise Data including pricing and inventory data. SwiftSku shall not be liable to Customer for any issues or claims arising from or related to price book updates.
• Age Verification. Customer understands and agrees to comply with all appropriate age verification laws and to ensure and will remain fully responsible for any age-restricted purchases.
• Additional Features; Trials. From time to time, SwiftSku may offer and Customer mayaccept additional features or trials of services beyond what the parties initially agreed to be included within the Services, such as additional business intelligence services, and POS import services. Customer may not disclose any information from trials or the terms or existence of any non-public trial. SwiftSku will have no liability arising out of or related to any trials. SwiftSku may charge an additional fee for additional services and such services may have additional terms and conditions. To the extent the parties agree to include such additional features, those features shall be deemed part of the “Services” and any additional terms and conditions associated with such features shall be deemed incorporated by reference into this Agreement.

V. INTELLECTUAL PROPERTY RIGHTS

• Rights to the System and Services.  As between Customer and SwiftSku, SwiftSkuretains all right, title, and interest in and to the System and the Services, including allsoftware used to provide the System and all graphics, user interfaces, logos, andtrademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System, the Services, or any of its components except as otherwise specified herein. Customer recognizes that the System, the Services and its components are protected by copyright and other laws.
• Proprietary Rights Notice.  The Services, which include all intellectual property rights therein are, and will remain, the property of SwiftSku. All rights in and to the System and Services not expressly granted to Customer in this Agreement are reserved and retained by SwiftSku and its licensors without restriction, including, SwiftSku’s right to sole ownership of the System and Documentation. Without limiting the generality of the foregoing, Customer agrees not to (and not to allow any third party to): (a) sublicense, distribute, or use the Services or System outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or ecompile the System or otherwise attempt to discover any source code or trade secrets related to the System or Services; (c) rent, lease, sell, assign or otherwise transfer rights in or to the System, Documentation or the Services; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services or the System; (e) use the trademarks, tradenames, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of SwiftSku; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with SwiftSku other than in the name of SwiftSku; (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services or System; or (h) seek, in a proceeding filed during the term of this Agreement or for one year after such term, an injunction of any portion of the Service based on patent infringement.
• Trademark and Name Usage. Trademark and Name Usage. Customer hereby grants to SwiftSku a non-exclusive, transferable and sublicenseable royalty-free right to use Customer’s company name, any associated tradenames, trademarks, brand names, logos and other such identifying marks for the purpose of identifying Customer as a customer of SwiftSku in any SwiftSku advertising material, websites, or other publications or communications.

VI. REPRESENTATIONS & WARRANTIES

• Representations and Warranties From SwiftSku. SwiftSku represents and warrants that it is the owner of the System and the Services, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement to Customer without the further consent of any third party. SwiftSku's representations and warranties in the preceding sentence do not apply to use of the System or Services in combination with hardware or software not provided by SwiftSku. In the event of a breach of the warranty in this Section 6.1, SwiftSku, at its own expense and discretion, will promptly take one of the following actions: (a) secure for Customer the right to continue using the System and receiving the Services; (b)replace or modify the System or Services to make them non-infringing; or (c) terminate the infringing features of the System or Services. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states SwiftSku's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 6.1 and for potential or actual intellectual property infringement by the System or Services.
• Representations and Warranties From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself or its business dealings to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 19 years or older, or another entity authorized to do business with SwiftSku pursuant to applicable law. Customer moreover represents and warrants that it has all consents, permissions and licenses necessary to provide the Enterprise Data to SwiftSku for use in accordance with provisions under “License to and Use of Enterprise Data.”
• Warranty Disclaimers.

• Translation. In the event of an error, ambiguity or discrepancy, this Agreement and the Documentations as originally provided in the English language shall be determinative and binding. Any translations rendered by SwiftSku of the Agreement, Documentations, or Customer Reports are provided solely as an accommodation to Customer, and SwiftSku disclaims all liability for any errors, ambiguities or discrepancies in translation. Either party may translate such materials into any other language. All translations will be at the sole cost and expense of the translating party. Ownership of any translated materials shall vest in the party who owned the materials from which the translation was made, and all copyrights in any such translated materials will be assigned by the translating party to the owning party or its designee upon the owning party's request. The translating party will obtain any necessary agreement with any translator that such translation will be the sole property of the owning party or its designee.
• Connectivity. The Services rely on the regular synchronization of Customer’ssystems and SwiftSku’s servers. Where such synchronization does not occurin a timely fashion, SwiftSku will endeavor to contact the Customer. It is Customer’s responsibility to ensure and maintain active internet connectionfor the SwiftSku IQ Module. SwiftSku will not be liable for Customer’s failureto maintain any such connectivity. To the maximum extent permitted by law,SwiftSku disclaims any liability associated with or related to installation,connection, access point, system and network security and performance,physical damages, transmission, data costs and overages, upload, download,and any and all errors that may occur involving the same.
• Services; Additional Features; Trial Services. Customer is subject to riskswhich cannot be foreseen or fully appreciated by any business intelligenceservices. Customer’s business, management, marketing and operationsinherently involve risk to the Customer. Customer is ultimately responsiblefor any of Customer’s business, management, marketing or operationalpractices and decisions and the impacts and outcomes of the same. Services,additional features and trial services may be developed, improved, revised oradjusted based upon additional data, improved algorithms, new modelingand/or validation. Functionality, integrity and quality of the Services and ofany Additional Features or trial services requires consistent delivery ofaccurate and precise data in real time over time. Enterprise Data and all input,delivery, handling, processing of Enterprise Data may contain errors andomissions and that it is ultimately Customer’s responsibility to ensure that allEnterprise Data is complete, accurate, timely and available. SwiftSku shall notbe liable to Customer for any pricing discrepancies, errors or omissions, orrecommendations based upon same.
• Cooperation with Law Enforcement. SwiftSku may share any informationprovided to it under the Services, including Enterprise Data, to lawenforcement upon a lawful request or, in its sole discretion, to protect itself orthird parties. Where law enforcement requires disclosure of Enterprise Data,SwiftSku will endeavor to (i) disclose only information necessary to satisfythe legal request and (ii) where permitted by law and regulation, keepCustomer apprised of such disclosures so that Customer may assist andcomply with such disclosures.
• General Warranty Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE SYSTEM, SERVICES AND CUSTOMER REPORTS ARE PROVIDED "AS IS" AND AS AVAILABLE AND SWIFTSKU MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, OR THERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) SWIFTSKUHAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR AUTHORIZED USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) SWIFTSKU DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (C)SWIFTSKU DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT ENTERPRISE DATA WILL REMAIN PRIVATE OR SECURE.

VII. INDEMNIFICATION

• To the extent permitted by applicable law, Customer will indemnify, hold harmless and defend the Indemnified SwiftSku Parties at Customer expense, from any and all thirdparty claims, actions, proceedings, and suits brought against the Indemnified SwiftSku Parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by the Indemnified SwiftSku Parties, arising out of or relating to (i) Customer breach of any term or condition of this Agreement, (ii) Customer’s alleged or actual use of, misuse of, or failure to use the System, Services or Customer Reports, including (a) claims by Authorized Users or by Customer's employees, as well as by Customer's own customers; (b) claims related to  infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer's account, including by Enterprise Data; (c)claims that use of the System, Services or Customer Reports through Customer's accountharasses, defames, or defrauds a third party or violates any applicable law, rule,regulation, restriction, guidance or industry standard (d) claims related to Customer’sresponsibilities outlined in this Agreement; (iii) any representations and warranties made by Customer concerning any aspect of the Services, the System or Customer Reports to any third party; (iv) Customer’s unauthorized disclosure, release or exposure of personally identifiable information or other private information of any third party including Customer’s own customers; and (vii) any claims with respect to acts or omissions of any third party in connection with the Services, the System or Customer Reports. Customer will cooperate as fully as reasonably required in the defense of any claim. Customer's obligations set forth in this Section include retention and payment of attorneys and payment of court costs, as well as settlement at Customer's expense and payment of judgments.
• SwiftSku reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer. SwiftSku will provide Customer with written notice of any claim, suit or action from which Customer must indemnify the Indemnified SwiftSku Parties. SwiftSku will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.

VIII. LIMITATION OF LIABILITY

• Dollar Cap. IN NO EVENT WILL SWIFTSKU’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SWIFTSKU IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO SUCH LIABILITY, OR ONE HUNDRED DOLLARS ($100 USD) WHERE CUSTOMER HAS HAD NO PAYMENT OBLIGATIONS TO SWIFTSKU DURING SUCH PERIOD, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDINGNEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOTSUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
• Exclusion of Consequential Damages. IN NO EVENT WILL SWIFTSKU BELIABLE TO CUSTOMER FOR LOST REVENUES OR ANY CONSEQUENTIAL,INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGESARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SWIFTSKUWAS ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCHDAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOTSATISFY A REMEDY.
• Clarifications & Disclaimers. THE PARTIES HEREBY ACKNOWLEDGE ANDAGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE ANESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN SWIFTSKUAND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLEHEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

IX. TERM AND TERMINATION

• Term. The term of this Agreement (the "Term") will commence on the Effective Dateand continue for one (1) month. Thereafter, the Term will renew each successive month for monthly periods, unless any Party notifies the other of non-renewal by written notice seven (7) or more days before the renewal date.
• Termination for Cause. Customer may terminate this Agreement for any materialbreach by SwiftSku after the Customer provides written notice to SwiftSku of suchbreach and allowing thirty (30) days from SwiftSku’s receipt of the notice for SwiftSku to attempt to cure said breach. Such notice will specify in detail the nature of the breach and will be effective in 30 days, or more if specified in the notice, unless SwiftSku first cures the breach. Upon any material breach by Customer, SwiftSku may terminate this Agreement and may retain the security deposit.
• Effects of Termination/Non-renewal. In the event of any termination (a) Customer will not be entitled to any proration or refund of any fees associated with the Services, and (b) any outstanding balance for Services rendered during the month of termination will be immediately due and payable in full. Upon any termination or non-renewal of this Agreement, SwiftSku will stop providing the Services and Customer will cease all use of the System and return the SwiftSku IQ Module within fifteen (15) days of notice. For each module not returned upon any termination or non-renewal within this time frame, a fee of $150 will be charged to the Customer directly and/or assessed against any Security Deposit of Customer.

X. DISPUTE RESOLUTION; ARBITRATION

• Arbitration Agreement; Mandatory Binding Arbitration. This Agreement and allclaims arising out of or related to this Agreement or the Services excluding claims forinjunctive relief shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitrationproceedings shall be held in English. This Arbitration Agreement applies to Customer,its Authorized Users, and SwiftSku, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
• Notice Requirement and Informal Dispute Resolution. Before either party may seekarbitration, the party must first send to the other party a written Notice of Dispute("Notice") describing the nature and basis of the claim or dispute, and the requested relief to SwiftSku at legal@swiftsku.com. After the Notice is received, Customer and SwiftSku may attempt to resolve the claim or dispute informally. If Customer and SwiftSku do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
• Governing Law and Jurisdiction. Arbitration will be governed solely by federalarbitration law, the Federal Arbitration Act, and/or the laws of the State of Alabamawithout regard to conflict of laws provisions or the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising under this Agreement shall be determined and settled by arbitration in Birmingham, Alabama in accordance with the rules of the American Arbitration Association (“AAA"). With respect to any claim or dispute arising out of or related to this Agreement, each party hereby waives any right it may have to (a) litigate in court, (b) receive a jury trial and (c) to participate in any class or collective action (whether in litigation or arbitration) against the other party. Any award rendered by the arbitrator will be final and binding on the parties and judgement thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. Arbitration will be conducted by one arbitrator that the parties mutually agree upon, or, if the parties are unable to agree to on a single arbitrator, three arbitrators consisting of one arbitrator chosen by each party and a third chosen by the two arbitrators selected by the parties. Each party shall bear its owncosts with respect to any arbitration.
• Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONALAND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONTOF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between Customer and SwiftSku in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, CUSTOMER AND SWIFTSKU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
• Class Action Waiver. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OFTHIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATEDON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OFMORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED ORLITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHERCUSTOMER OR USER.

XI. MISCELLANEOUS

• Independent Contractors. Apart from payments of all fees associated with the use of the Services, unless waived by SwiftSku, Customer shall make a security deposit to SwiftSku in the amount of $150.00 associated with possession of the SwiftSku IQ Module throughout the Term. Such security deposit shall be refunded to Customer upon SwiftSku’s receipt of the SwiftSku IQ Module, undamaged, from Customer within fifteen (15) days of notification of non-renewal or other termination of this Agreement, provided that Customer has otherwise complied with all Customer obligations and restrictions as set forth in this Agreement.
• Governing Law and Jurisdiction. Arbitration will be governed solely by federalarbitration law, the Federal Arbitration Act, and/or the laws of the State of Alabamawithout regard to conflict of laws provisions or the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising under this Agreement shall be determined and settled by arbitration in Birmingham, Alabama in accordance with the rules of the American Arbitration Association (“AAA"). With respect to any claim or dispute arising out of or related to this Agreement, each party hereby waives any right it may have to (a) litigate in court, (b) receive a jury trial and (c) to participate in any class or collective action (whether in litigation or arbitration) against the other party. Any award rendered by the arbitrator will be final and binding on the parties and judgement thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. Arbitration will be conducted by one arbitrator that the parties mutually agree upon, or, if the parties are unable to agree to on a single arbitrator, three arbitrators consisting of one arbitrator chosen by each party and a third chosen by the two arbitrators selected by the parties. Each party shall bear its owncosts with respect to any arbitration.
• Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONALAND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONTOF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between Customer and SwiftSku in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, CUSTOMER AND SWIFTSKU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
• Class Action Waiver. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OFTHIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATEDON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OFMORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED ORLITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHERCUSTOMER OR USER.
• Notices. All notices required to be sent hereunder shall be in writing, addressed toreceiving party's current business contact, if known, and sent to the party's address as specified in this Agreement, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (a) if personally delivered by courier, when delivered; (b) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address; or (c) if sent by email, upon confirmation of transmission. If to SwiftSku, such notice shall be sent to legal@swiftsku.com.
• Force Majeure. SwiftSku will be excused from performance of this Agreement to theextent that performance is prevented, delayed or obstructed by causes beyond itsreasonable control. Nothing shall excuse a party’s obligations to pay any fees due.
• Severability; Intent. If any provision of this Agreement is held to be invalid orunenforceable for any reason, such provision will be interpreted or reformed to the extent necessary to effect the enforceability of its intended purpose to the maximum extent permitted by applicable law, and the remainder of this Agreement will continue in full force and effect.
• Applicable Law and Venue. This Agreement will be governed by and construed underthe laws of the state of Alabama without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Alabama law, rules, and regulations, Alabama law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Jefferson County, Alabama. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.
• Technology Export. Customer will not: (a) permit any third party to access or use theSystem in violation of any U.S. law or regulation; or (b) export any software provided by SwiftSku or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Services or System in or by, or export any aspects of the System or Services to, any country or individual subject to a United States embargo.
• No Waiver. A waiver of any default is not a waiver of any subsequent default. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
• Assignment; Successors and Assigns. Customer may not assign or otherwise transfer any of Customer’s rights in this Agreement without SwiftSku’s prior, express written consent, and any such attempt is void. SwiftSku may freely assign its rights or obligations under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
• Entire Agreement; Reliance. This Agreement represents the complete, entire agreement between Customer and SwiftSku concerning its subject matter, and supersedes all prior communications between the parties with respect to its subject matter. Neither party has relied upon any such prior communications.
• Headings. Titles, headings and subheadings appearing in this Agreement are provided as a matter of convenience and shall not be read, construed, interpreted or enforced to interfere with the substance of this Agreement’s provisions.
• Modification.  SwiftSku may modify these terms or any additional terms that apply to the Services to, for example, reflect changes to the law or changes to the Services. Customers is responsible for looking at the terms regularly. SwiftSku will post notice of modifications to these terms at www.SwiftSku.com or at any other applicable URLprovided by SwiftSku. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If Customer does not agree to the modified terms for the Service, Customer shall discontinue use of the Services. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of SwiftSku, (ii) Customer accepts updated terms online, or (iii) Customer continues to use the Services after SwiftSku has posted updates to the Agreement. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
• Taxes.  Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority in connection with Customer's performance under this Agreement, other than any taxes imposed on SwiftSku's income.
• Modification.  Provisions of this Agreement under the following headings or subheadings will survive any termination thereof: Definitions, Nonexclusive License, Intellectual Property Rights, Proprietary Rights Notice, Dispute Resolution; Arbitration, Indemnification, Representations and Warranties From Customer, Warranty Disclaimers, Limitation of Liability, Term and Termination, and Miscellaneous