Terms of use
Last Updated: February 21, 2024
The Site and Services (each as defined below) are provided to you (“you”, "your" or “Customer”) by SwagUp, Inc. and its subsidiaries (referred herein as "we", "us", "our" and "SwagUp"). These Terms of Use (“Terms”) govern your use of the SwagUp website located at www.swagup.com, our platform, redeem pages, SwagUp Shops or any apps or websites accessible therefrom (collectively, the “Site”) and the services provided by SwagUp, or any use thereof (the “Services”). In addition to these Terms, the Site and Services may be governed by additional agreements, or such other terms as may be issued by SwagUp from time to time. These additional terms shall be in addition to, and not in lieu of, these Terms except as set forth herein.
Please review these Terms carefully. Upon either an agreed upon Purchase Order (as defined below) (a Purchase Order together with these Terms is an “Agreement”) or by accessing, browsing, or otherwise using the Site or any other aspect of the Services, these Terms are effective and you acknowledge that you have read, understood, and agree to be bound by these Terms. The Terms along with any Purchase Order constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements.
We reserve the right, at our sole direction, to change or modify portions or revise the Terms at any time without notice. You should periodically visit these Terms to review the current terms that apply to your use of the Site or Services. Any use of the Site or Services by you after our publication of such revised Terms shall constitute your acceptance of these Terms as modified. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms were last revised. We may also notify you of any material changes either through a pop-up notice, e-mail or through other reasonable means. Your continued use of the Site or Services after any such changes constitutes your acceptance of the new Terms. If you do not agree to abide by this or any future Terms, do not use or access (or continue to use or access) the Site or the Services.
BY USING THE SITE OR SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THESE TERMS. IF YOU ARE USING THE SITE OR SERVICES ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, THEN YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS.
1. SERVICES & ACCESS
1.1. Description of Services. SwagUp provides curated, customer branded swag products and services, including design, inventory management, distribution, warehousing and fulfillment services.
1.2. Permitted Use. We hereby grant you limited permission to use the Site and the Services, so long as we provide you with access. For the avoidance of doubt, we are not giving you any rights or license with respect to any aspect of the Site or the Services, all rights being held by us. You expressly acknowledge and agree that we reserve the right to refuse service, suspend or terminate your account, block your use of the Site and/or cancel your order(s) at our sole discretion, including, without limitation, if we believe or suspect that you violate any applicable law or any of these Terms.
1.3. Usage Restrictions. You may not: (a) make the Site or Service available to, or use the Site or Service for the benefit of, anyone other than you and any authorized users; (b) use the Site to transmit or attempt to transmit advertisements without our prior written authorization; (c) publish, upload, post, transmit, or otherwise make available to the Site any content that (i) is unlawful or tortious, harassing, libelous or defamatory, obscene, threatening, harmful of minors in any way, abusive, or contain expressions of hatred, bigotry, racism or pornography, or are otherwise objectionable, or that would constitute or encourage a criminal offense, or (ii) you do not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that knowingly infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person or entity; (d) sublicense, resell, time share, or similarly exploit the Site or Services; (e) upload, post, transmit, or otherwise make available any content or information knowingly designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (f) copy, reverse engineer, modify, adapt, or hack the Site or Services, or otherwise attempt to gain unauthorized access to the Site or Services or its related systems or networks; or (g) access the Site to build a competitive product or service ((a) through (g) herein, collectively, the “Restrictions”). You shall not act in a manner that negatively affects other users’ ability to interact with the Site or the Services.
1.4. Account, Password and Security. You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify SwagUp of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Site or Services. SwagUp will not be liable for any loss or damage arising from your failure to comply with this section.
2. PRODUCTS
2.1. Products. The Site and Services may make available listings, descriptions and images of goods (collectively, "Products"). Such Products may be made available by SwagUp or by third parties. The availability through the Site of any listing, description or image of any Product does not imply an endorsement of such Product or an affiliation with the manufacturer or provider of such Product. Any such reference does not imply or warrant that any such products or services shall be available at any time. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.
2.2. Availability. The availability and pricing of Products identified on our Site or a Purchase Order is subject to change. The Site and Services may contain references to products and services that may no longer be available. In the event a Purchase Order has been agreed upon or Fees have been paid by you and the Product is unavailable, SwagUp will provide you notice of the unavailable Product and provide suggestions for a suitable replacement.
2.3. Restrictions. SwagUp reserves the right, including without prior notice to you, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, credit or similar promotion; to bar any user from completing an order; to cancel any order even after it has been placed on line through the Site and to refuse to provide any user with any Product, subject to any applicable laws.
2.4. Use of Products. You represent that the applicable Products will be used only in a lawful manner in accordance with any instructions provided. You agree that you will not resell any products or services obtained through SwagUp, unless we have provided our express prior written consent for you to do so. You agree to take full responsibility for the selection and use of any Products you purchase on behalf of yourself or others including the determination of whether such Products are appropriate for the recipient, and except as provided herein, SwagUp shall not be liable to you or the recipient for any damages in connection with the use of any Products.
2.5. Title. Title passes to you upon the Purchase of Products. You agree that at no time during the period that Products are held by SwagUp will SwagUp hold title, or any other rights of ownership in the Products.
2.6. Defective and Damaged Products. All claims for Products that are non-conforming, defective or damaged must be made in accordance with our Shipping and Return/Refund Policies located at the bottom of these Terms.
3. PURCHASE ORDERS
3.1. You may request that SwagUp supply Products and Services pursuant to the terms of a mutually agreed upon purchase order, order form, invoice or checkout page (a "Purchase Order"). We shall have no obligation to accept a Purchase Order.
3.2. Each agreed upon Purchase Order shall identify the specific Products and Services to be delivered by us, and the quantities and pricing for the same.
3.3. A Purchase Order shall not be effective until it is accepted by us. The parties may agree to terms in a Purchase Order which vary from or would be inconsistent with the provisions of these Terms, in which case any conflict between the terms of these Terms and the Purchase Order, the Purchase Order terms will prevail.
4. PAYMENTS
4.1. Pricing. All prices are subject to change from time to time, and your purchase will be based on prices in effect at the time of an agreed upon Purchase Order. All prices are exclusive of sales and other applicable taxes, shipping and handling and freight charges, all of which will be your responsibility and may be set forth in any Purchase Order as separate line items, unless otherwise specified. When you place an order on the Site, we will provide an estimated total price which will include estimated sales and other applicable taxes, shipping and other applicable fees. However, you acknowledge and agree that the final purchase price will be as stated on a Purchase Order as set forth in Section 4.2.
4.2. Fees. You will pay all fees specified in any Purchase Order (the “Fees”). Payment obligations are non-cancelable and, except as expressly set forth herein, Fees paid are non-refundable and payable in United States dollars (subject to the refund and/or credit rights set forth herein). Except as set forth in any Purchase Order, due to the customized nature of the Products, Fees are due upfront in advance of any production.
4.3. Late Payment. If any Fees owed by you (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date (within 30 days of receipt of an agreed upon Purchase Order unless otherwise agreed in writing by the parties), we reserve the right to cancel any order or apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.
4.4. Modification of Any Purchase Order. If you choose to modify your Purchase Order or any Product is unavailable or has changed in price, any incremental cost increase or decrease shall be reflected in an updated Purchase Order. Any incremental increase in Fees shall be payable by you in accordance with these Terms. Any refund owed to you shall be payable in accordance with these Terms.
4.5. Taxes. You will be solely responsible for, all applicable taxes in connection with these Terms and any Purchase Order, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on SwagUp’s net income) unless otherwise specified in writing. Should any payment for the Products and Services provided by SwagUp be subject to withholding tax by any taxing authority, you will reimburse SwagUp for such withholding tax. In the event you are tax-exempt, you shall provide a valid tax exemption certificate to SwagUp. If you would like more information on taxes, please refer to our Site Here.
4.6. Credits. SwagUp allows you to load a dollar value onto your account in return for credits for use on its Site for its Services (“Credits”). The dollar value that you load onto your account may be a prepayment for the Products and Services provided by SwagUp except as otherwise set forth in the Membership Terms and Shop Terms. We offer the Credits to make it easier for you to use our Site and Services. Unless otherwise required by law or permitted by these Terms, Credits are nonrefundable and may not be redeemed for cash. The value of your credits are not insured by SwagUp or by the Federal Deposit Insurance Corporation (FDIC), nor do Credits earn interest.
5. INTELLECTUAL PROPERTY
5.1. Ownership. SwagUp shall retain all intellectual property rights in the Site and the Services, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by these Terms except those expressly granted herein. Except for User Content (as defined below), all content and material made available on the Site, (collectively “Site Content“), including, without limitation, catalogs, product photos and images, graphics, designs, artwork, text, written/editorial material, audios, videos, animations, databases, layouts, user interfaces, software programs (including their source code and object code), and social media applications and plug-ins, belong exclusively to us and/or our licensors and partners, and are protected by U.S. and international copyright and trademark laws. Any use or copying of the Site or Site Content, without written permission from SwagUp, is strictly prohibited. Customer hereby grants SwagUp a non exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, product ideas or categories, or service improvements given by Customer pertaining to the Site or the Service.
5.2. User Content. As used herein, “User Content” means any marks, artwork, logos, design, data, files, specifications visual, graphic, pictorial, photographic, written, or other material furnished to us by you. You retain ownership of all User Content furnished by you, but subject to your license grant to us as set forth herein. By furnishing User Content to us, (i) you grant to us a worldwide, non-exclusive, royalty-free, license (with the right to sublicense to our suppliers, designers and our fulfillment partners) to use, copy, reproduce, distribute, prepare derivative works of, display and perform, to the extent required to perform the Services, make custom products and fulfill order(s); (ii) you represent and warrant that you own and control all rights in and to such User Content and have the legal right and authority to grant the aforementioned license to us; and (iii) you agree to defend, indemnify and hold us and our officers, directors, employees, agents, suppliers, , vendors, and fulfillment partners harmless pursuant to Section 13.1 below, in the event any User Content furnished by you infringes upon, violates or misappropriates any property, personal or proprietary right of any person or entity.
5.3. Copyright Complaints. We are under no obligation to, and do not, scan content used in connection with the Site or Services for the inclusion of illegal or impermissible content. However, we respect the copyright and intellectual property interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Site.
- 5.3.1. If you believe that an infringement of intellectual property rights exists, please provide us with notice of the same to legal@swagup.com
- 5.3.2. If you believe there is or has been a copyright infringement, you should provide us with written notice that contains the following information required by the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512
- 5.3.3. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- 5.3.4. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- 5.3.5. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- 5.3.6. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an email address at which the complaining party may be contacted;
- 5.3.7. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
- 5.3.8. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
6. STORAGE
6.1. Storage. Upon payment of all additional charges, as part of our Services, Customer may store its Products or 3rd party products at facilities operated by SwagUp or a 3rd party logistics company (“Inventory”), subject to these Terms, SwagUp’s Shipping Policy (located at the bottom of this page) and its Return/Refund Policy (located at the bottom of this page). You will be charged every six (6) months or as otherwise determined by SwagUp for SwagUp to store your Inventory. Storage pricing will be billed at our then-current rates or as otherwise agreed in writing. Our obligations regarding products held in Inventory will be limited to a duty to exercise reasonable care in handling and storage of such products. You agree that SwagUp may ship products held in Inventory to you or your designee upon your request and at your expense. In the event that you request shipment of products held in Inventory and subsequently cancel a portion or all of such request, you will be liable for any and all applicable cancellation, restocking, and similar charges imposed by SwagUp or its suppliers. We hold such items on behalf of Customer and you hereby agree that at no time during the period that your products are held in Inventory will SwagUp or any other third party hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by You.
6.2. Inactive Inventory. Upon notice to you, we may require you to take physical possession of Inactive Inventory within thirty (30) days notice, unless otherwise mutually agreed by the parties in writing. “Inactive Inventory” is defined as those Products or 3rd party products that we hold in Inventory for you that we received 6 months or more prior and you are not continuing the payment of storage fees. In the event that SwagUp requires you to take physical possession of your products held in Inventory, we will require you to provide an address for delivery and pay any additional fees including shipping. If no address is provided by you, SwagUp reserves the right to destroy, donate or discard of, any Inactive Inventory that remains unclaimed after such period.
7. SHIPPING
7.1 Shipping Fees and Terms. Shipping pricing will be charged at SwagUp’s then-current rates for domestic and international shipping which can be found Here. You agree to pay all charges incurred by you or on your behalf through the Site at the prices in effect when such charges are incurred. In accordance with our Shipping Policy (located at the bottom of this page) and our Return/Refund Policy (located at the bottom of this page). Any delivery date(s) are approximate and are subject to a variety of factors including but not limited to carrier operations, weather, strikes and acts of god. We are not liable for any loss or expense, whether by contract or tort, incurred by you resulting from failure to meet the estimated delivery date. All other shipping information is set forth in our Shipping Policy linked below.
8. MEMBERSHIPS, SHOPS & LOYALTY PROGRAM
8.1. Membership Terms. By selecting a membership tier with SwagUp and paying the Membership Fee, you become a “Member” with access to certain benefits, features, discounts and services through the Site and Services (a “Membership”). Terms and conditions in connection with our Memberships and SwagUp’s loyalty program can be found in our Membership Terms (the “Membership Terms”). Additionally, terms and conditions for SwagUp’s native shops can be found Here (“Shop Terms”).
9. WARRANTIES
9.1. Customer Warranties. Customer represents and warrants that (a) the User Content does not infringe upon any third party’s proprietary rights, including intellectual property rights (b) Customer will use the Site and Service in compliance with all applicable laws and regulations, including laws applicable to the jurisdictions in which they send items, and any corporate policies to which its recipients are subject.
9.2. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USAGE OF THE SITE AND SERVICES, AND ALL PRODUCTS ARE SOLD “AS IS,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. WE NEITHER MAKE NOR ASSUME, AND DO NOT AUTHORIZE ANY OTHER PERSON TO MAKE OR ASSUME, ANY OBLIGATION, LIABILITY OR WARRANTY IN CONNECTION WITH ANY PRODUCTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SWAGUP DOES NOT WARRANT THAT THE SITE, SERVICE OR ANY SERVICES RELATED THERETO (A) WILL BE DELIVERED OR PERFORMED WITHOUT MISTAKE OR INTERRUPTION, (B) THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SITE, SERVICE OR PRODUCTS OR (C) THE SITE, OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR- FREE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THE FOREGOING DISCLAIMER OF WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN ANY APPLICABLE JURISDICTION. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID, INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION.
10. CONFIDENTIALITY
10.1. Non-Disclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under these Terms and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, contractors, subcontractors, agents, fulfillment partners, suppliers, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and non-use at least as protective of such information as these Terms and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party except as set forth herein. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of these Terms for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
10.2. Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of these Terms by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in these Terms.
11. THIRD PARTY SITES
11.1. Third Party Sites. The Site or Services may provide links to third party websites or resources (“Third Party Sites”). Because we have no control over Third Party Sites and resources, you acknowledge and agree that we are not responsible for the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites, and do not endorse and are not responsible or liable for any content, advertising, goods, services or other materials on, available through or provided by such Third Party Sites. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any interaction you may have with such Third Party Sites. We may enable social media connectivity on the Site from time to time. This connectivity may link to our own social media accounts. Those social media websites are also Third Party Sites. You acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than us, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Site terms and conditions and any other applicable policies. Third Party Sites may also be able to use information about action you take on our Site. However, note that where you choose to publish or share information through the social media links or on our Site, we have no control over that activity. It will not be protected by us. YOU AGREE THAT SWAGUP WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
12. LIMITATION OF LIABILITY
12.1. Exclusion of Damages. IN NO EVENT WILL SWAGUP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF SALE, LOSS OF DATA OR INFORMATION OF ANY KIND, LOSS OF OPPORTUNITY, LOSS OF USE, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR OTHER INTANGIBLE LOSSES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SWAGUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RELATED TO (A) THE PRODUCTS OR THE USE OR THE INABILITY TO USE THE SITE OR SERVICES; (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY USER CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH THE USE OF THE SITE OR SERVICES; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICE; AND (D) ANY DAMAGE TO INVENTORY HELD BY SWAGUP ON BEHALF OF CUSTOMER (EXCEPT AS OTHERWISE STATED HEREIN).
12.2. MAXIMUM AGGREGATE LIABILITY. SWAGUP’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THE TERMS OR THE SITE OR SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SWAGUP DURING THE SIX (6) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN ANY APPLICABLE JURISDICTION. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID, INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE OR SERVICE.
13. INDEMNITY
13.1. Customer Indemnities. By using the Site and Services, you agree to defend, indemnify and hold us and our officers, directors, consultants, employees, agents, suppliers, and fulfillment partners, successors and permitted assigns, harmless from and against any third party claims, demands, suits, actions, proceedings, judgments, orders, damages, liabilities, penalties, losses, costs and expenses (including, without limitation, attorney fees and court costs) (collectively “claims“) arising from or in connection with: (i) your misuse of the Site or Services; (ii) any User Content furnished by you; (iii) your misuse, resale or further distribution of any Products you purchase from us, or your use of the Products in any manner not contemplated by these Terms; (iii) your breach or violation of any of these Terms, Membership Terms, Shop Terms and any applicable law, rules, regulations or governmental order; or (iv) any harm including but not limited to injury, damage to property, sickness, disease or death, suffered or alleged to be suffered by any third party caused by or in connection with products sent by SwagUp, other than as a result of any gross negligence, fraud, malicious, or reckless conduct on the part of SwagUp. For the sake of clarity, nothing in these Terms is intended to limit liability on the part of SwagUp for any gross negligence, fraud, malicious, or reckless conduct on the part of SwagUp.
13.2. SwagUp Indemnities. SwagUp shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any claim arising out of or relating to an allegation that the Products or Services infringes any intellectual property right of a third party.
14. PUBLICITY
14.1 Publicity. Customer hereby approves the display by SwagUp of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to SwagUp.
15. GOVERNING LAW AND DISPUTE SETTLEMENT; ARBITRATION CLAUSE AND CLASS ACTION WAIVER—IMPORTANT—PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
15.1. Arbitration. Any dispute or claim arising under or relating to these Terms, the Site, Services or any other products or services provided by us (each, a “Dispute”), will be determined by confidential and binding arbitration in Piscataway, New Jersey, United States, before a single arbitrator. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties will treat all disputes arising under these Terms, including arbitration proceedings and awards, as Confidential Information of both parties, except as necessary in connection with a judicial challenge to or enforcement of an award or otherwise required by law or judicial decision. Notwithstanding the above, either party may seek injunctive relief in a court of competent jurisdiction, and issues of patent or copyright ownership or infringement may be decided in the state or federal courts of the State of New Jersey and the United States sitting in Middlesex County in the State of New Jersey. The prevailing party in any action arising from or relating to these Terms shall be entitled to recover its reasonable attorneys’ fees and costs including, without limitation, arbitration and expert fees.
15.2. Governing Law. These Terms are governed by the laws of the State of New Jersey, without regards to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
15.3. Class Action Waiver. Both parties agree that all claims brought against the other must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
16. GENERAL TERMS
16.1. Assignment. You may not assign these Terms or your rights and obligations without the prior written consent of SwagUp, but SwagUp may freely assign or transfer these Terms and its rights and obligations, in whole or in part, without restriction. Subject to the foregoing, these Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
16.2. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent electronically, via e-mail or regular mail to the address provided by you. When you use the Site or Services or send communications to us through the Site, you are communicating with us electronically. You consent to receive electronically any communications related to your use of the Site and Services.
16.3. Relationship of the Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. These Terms and any Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.1
16.4. Severability. If any provision of these Terms or any Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of these Terms will remain in full force and effect.
16.5. Force Majeure. SwagUp shall not be in default or liable for any loss, damage, or penalty resulting from any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, labor strikes, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond our reasonable control.
16.6. Entire Understanding. Both parties agree that these Terms, including all exhibits and addenda hereto and all Purchase Orders, is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral
agreements, communications and other understandings relating to the subject matter of the
se Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. To the extent of any conflict or inconsistency between the provisions in these Terms and any services agreement, exhibit or addendum hereto or any Purchase Order, Shop Terms, Membership Terms and the benefits of such Membership, the terms of the applicable service agreement, exhibit, addendum or Purchase Order or Membership Terms or Shop Terms shall prevail.