Updated 4/11/2025
1. ACCOUNTS, SWIFTGISTICS SERVICES, AND POLICIES.
A. Accounts. In order to create an account with Swiftgistics, you will provide Swiftgistics with identifying information, a password, company information and information about your Inventory (Client Setup Information”). You agree that you will provide accurate Client Setup Information and will promptly update such Client Setup Information as necessary, but in no event later than 10 days after any applicable change. Upon Swiftgistics acceptance of your request to register for an account (“Account”), you will be sent validation and activation instructions. Access to, and use of, the Account is restricted to authorized users only. You agree not to share your password(s), Account information, or Account access information. You are responsible for maintaining the confidentiality of password(s) and Account information, and you are responsible for all activities that occur under your password(s) or Account(s) or as a result of your access to the Account(s). You agree to notify Swiftgistics immediately of any unauthorized use of your Account. Swiftgistics shall not be liable for any unauthorized use of your Account. For purposes of these Terms, “Good Standing” means that the Account has a positive balance and that you are not be in breach of these Terms or Policies.
B. Swiftgistics Services. Subject to your compliance with these Terms and the Policies (as defined below in Section 1(c)), Swiftgistics shall perform the Swiftgistics Services as selected and authorized by you. For purposes of these Terms, “Swiftgistics Services” means the Swiftgistics products and services and any other features, software, technologies and/or functionalities offered by Swiftgistics and ordered by you. You may order Swiftgistics Services through your Account (“Swiftgistics Services Orders”) or by speaking with us via telephone. All Swiftgistics Services Orders are deemed incorporated into, and governed by, these Terms. By using the Swiftgistics Services, you acknowledge and agree that Swiftgistics is a broker of third-party warehouse and shipping services. Swiftgistics helps you accept shipments from, and make shipments to, third parties. Swiftgistics is an independent contractor for all purposes. Swiftgistics acts as your agent only with respect to the custody of your merchandise (hereinafter referred to as “Inventory”).
>C. Customer Policies and Use of Swiftgistics Services. Swiftgistics has defined policies that govern your use of the Swiftgistics Services (“Policies”). The Policies are linked below and are hereby incorporated by reference. In the event of any conflict or inconsistency between these Terms and any of the Policies, these Terms shall control. Your breach of any of these Terms or the Policies shall excuse Swiftgistics’ performance of the applicable Swiftgistics Service.
You acknowledge that your breach of the Policies or the Terms may result in you incurring additional fees from Swiftgistics or third parties for the applicable Swiftgistics Services.
2. ACCOUNT BALANCES AND FEES.
A. Account Balances. Swiftgistics may set a minimum balance that you must maintain on your Account (“Minimum”). Swiftgistics reserves the right to increase or to decrease the Minimum on your Account immediately upon notice to you. Your Swiftgistics Account must be funded at or above the Minimum in order to receive Swiftgistics Services. The funds that you maintain in your Swiftgistics Account constitute your “Account Balance”. As Swiftgistics Services charges are incurred, Swiftgistics will deduct these from your Account Balance. Swiftgistics reserves the right to request deposits to receive Inventory to cover costs such as receiving costs and enforce minimum Account Balances. If your Account is closed for any reason, Swiftgistics reserves the right to hold the Minimum Balance for up to 180 Days.
B. Usage Fees. “Usage Fees” are the fees for any Swiftgistics Services and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, or other charges given during your use of Swiftgistics Services) ordered through your Account and any special or additional fees assessed against your Account as permitted in these Terms or the Policies. Note that the Usage Fees for Swiftgistics Services are billed to the month in which the Swiftgistics Services are performed. Usage Fees are subject to change. If you are on a billing plan, should you change plans during or at the end of any month, your previous pricing plan may no longer be available.
C. Estimates. Quotations for Swiftgistics Services and Usage Fees are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon Swiftgistics. Accepted quotations are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of your product, the delivery address, and services requested during the normal course of delivery. Swiftgistics reserves the right to bill the Usage Fees based on actual charges at any time after the Swiftgistics Services are rendered. Swiftgistics specifically disclaims liability for any shipping rate errors due to inaccurate or incomplete information, such as dimensions and weights.
D. Additional Item Fees/Credits. For some Swiftgistics plans, there may be a need to pay for additional item fees when the total items shipped during a month exceed plan allowance. Merchants on Swiftgistics pricing plans that use item allowances understand that plan items not used will be the automatically forfeited. This applies to items purchased as part of plan upgrades, as well as to any unused additional item credits.
E. Currency Fluctuations. Swiftgistics reserves the right to adjust its pricing inresponse to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes.
F. Usage Fee Disputes. Should you disagree with any Usage Fees (other than carrier or third-party fees) charged against your Account, you must submit the dispute to Swiftgistics within 10 days of the fee being charged (“Dispute Period”). Swiftgistics will not review Customer requests for Usage Fee adjustments that are received after the Dispute Period. The dispute timing allowed for third-party fees and carrier fees shall be set by the applicable third-party or carrier and such time period may be substantially shorter than the Swiftgistics Dispute Period. If you have a dispute with a third-party fee or carrier fee, please contact Swiftgistics immediately.
G. Account Balance Disputes. If Swiftgistics becomes aware of, or is notified of, a dispute relating to your Account Balance, then Swiftgistics will promptly review the dispute. Within 5 business days after the resolution of the dispute, Swiftgistics will credit or debit your Account Balance accordingly, if appropriate. Swiftgistics will not review Customer requests for Account Balance adjustments that are received more than 10 days after the amount in dispute is posted to your Account Balance.
H. Abandoned Account and Liquidation. If your Usage Fees remain unpaid for a period greater than 30 days, then Swiftgistics reserves the right, at its sole discretion, to reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, all rights to ownership of the Account Balance and Inventory would then immediately be forfeited by you. Inventory will become immediately and irrevocably unavailable to you, and liquidation proceedings will begin. You agree the Inventory will be free and clear of liability, and that you assume any liability therefore. You will have no rights to the liquidation proceeds. You will also remain liable for any pending Usage Fees above and beyond the liquidation proceeds.
I. Taxes. You acknowledge and agree that all fees, charges and any other rates or amounts charged by Swiftgistics to you hereunder are exclusive of applicable value added, sales/use or Inventory and service taxes (“Transaction Taxes”) which may be levied in connection with the supply by Swiftgistics of the Swiftgistics Services to you. Where applicable, you shall pay all Transaction Taxes arising in respect of the Usage Fees or other amounts charged by Swiftgistics to you.
J. Currency. All dollar amounts stated in these Terms and the Policy’s will be in US dollars unless otherwise specified.
K. Payment and Discounts.
3. DEVELOPERS AND API LICENSE.
A. License Grant. If you are integrating with Swiftgistics via the Extensiv REST API, then Swiftgistics grants you a revocable, non-exclusive, non-transferable license to use the Extensiv REST API in accordance with the documentation for your internal business purposes only. You may not rent, lease or otherwise transfer your rights to any third party. Swiftgistics provides access to the Extensiv REST API solely on an “AS IS” basis and disclaims all warranties and liability for your use of the Extensiv REST API. Swiftgistics may change or discontinue any access to the Extensiv REST API in its reasonable discretion.
B. Third Party Software. Any third party software application you use on the Swiftgistics website, to connect to Swiftgistics Services, or related to the Swiftgistics Services (“Third Party Software”) is solely subject to any third party software provider software licenses. Swiftgistics does not own, control or have any responsibility or liability for any Third Party Software.
4. INTELLECTUAL PROPERTY.
A. Swiftgistics Property. For purposes of this Agreement, “Swiftgistics Property” shall mean (a) Swiftgistics’ methodology for the provision of Swiftgistics Services; and (b) Swiftgistics’ ideas, web site, processes, code, technology, software, copyrights, logos, domain names, patents, trade secrets, trademarks, products and materials. Swiftgistics hereby retains all worldwide right, title and interest in and to the Swiftgistics Property. Any rights not expressly granted herein to the Swiftgistics Property shall be retained by Swiftgistics. You acknowledge that all right, title and interest to the Swiftgistics Property is owned by Swiftgistics.
B. Additional Restrictions. Other than as permitted herein, you shall not (and you shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Swiftgistics Property, or otherwise to attempt to discern the functioning or operation of the website or Swiftgistics Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any or the rights that you receive hereunder. To be clear, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Swiftgistics and you shall not copy, imitate, or use them without our express prior written consent. You shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Swiftgistics or the Swiftgistics Service, or display them in any manner that implies Swiftgistics’ sponsorship or endorsement. You shall not (and you shall not permit others to): (i) use any robot, spider, scraper or other automated means to access the Swiftgistics website or Swiftgistics Services for any purpose without Swiftgistics’ express written permission, (ii) interfere or attempt to interfere with the proper working of our website or any activities conducted on the website, or (iii) bypass any measures Swiftgistics may use to prevent or restrict access to the Swiftgistics website or the Swiftgistics Services.
C. Client Property. No Confidential Information obtained by Swiftgistics from you shall become Swiftgistics Property. All materials provided by you, under any Swiftgistics Services Orders, shall be deemed “Client Property” for purposes of the Agreement. You grant to Swiftgistics a non-exclusive license to the Client Property solely as needed to provide the Swiftgistics Services. No other licenses express or implied, under any intellectual property rights are granted by you to Swiftgistics under these Terms.
D. Data Security and Privacy. The Service is currently provided from the United States. New Client Setup Information, Account Data, information, Personal Data, and other data (“Data”) is currently stored and processed in the United States. Swiftgistics has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of Data. These measures include encryption of Data during transmission to the Swiftgistics Service and encryption of backups of Data and authentication credentials at rest. Swiftgistics will use reasonable efforts to promptly notify Account owner of any unauthorized access to, or use of, Data that comes to Swiftgistics’ attention. You must immediately notify Swiftgistics of any suspected security breach at support@swiftgistics.com followed by contacting Swiftgistics at (435) 214-4466. For purposes of Processing Personal Data, Swiftgistics agrees to incorporate a Data Processing Agreement, whereby Customer is the deemed the Data Controller (or Business under CCPA) and Swiftgistics is the Data Processor (or Service Provider under CCPA).
5. CONFIDENTIAL INFORMATION AND EMPLOYEES.
A. Definition. Each party (“Recipient”) acknowledges that it may receive Confidential Information as defined herein. For purposes of these Terms and subject to the Exclusions set forth below, Confidential Information means any information provided to it by the other party (“Discloser”) that is marked, labeled or otherwise designated as confidential or proprietary, or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure.
B. Exclusion. Information that is subject to one of the exclusions below shall not be Confidential Information. The exclusions include the following: (a) Non-transactional Confidential Information (as defined below), (b) information publicly known at the time of disclosure, (c) information received by Recipient without restriction from a third party, (d) information published or otherwise made known to the public by Discloser, (e) information that was generated independently without reference to the Discloser’s Confidential Information, or (f) information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.
C. Non-transactional Confidential Information. Other than transaction information absolutely required for Swiftgistics to provide, or for you to use the Swiftgistics Services, Swiftgistics does not require nor desire any of your proprietary information (“Non-transactional Confidential Information”). You agree not to provide Swiftgistics with any Non-transactional Confidential Information, including, but not limited to, prototypes of new products, without Swiftgistics’ express prior written consent. In the event that you send such Non-transactional Confidential Information to Swiftgistics without Swiftgistics’ prior written consent, then Swiftgistics shall not be obligated to treat such information as Confidential Information.
D. Standard of Care. Recipient shall not use the Confidential Information for any purpose other than as required by these Terms. Recipient shall not disclose the Confidential Information to any third party, other than as required to perform the Swiftgistics Services. Recipient shall use at least the same standard of care with the Discloser’s Confidential Information as it does with its own Confidential Information, but in no event with less than reasonable care. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section.
E. Return or Destruction. Other than transactional information that is retained in the ordinary course of a party’s business, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed promptly after receipt of written request from the other party.
F. Aggregate Use. Subject to the Terms herein, you hereby acknowledge and agree that Swiftgistics may compile aggregate results from all of, or a selection of your use of the Swiftgistics Services, provided that Swiftgistics shall not disclose any information that would individually identify you (“Aggregate Information”). Such Aggregate Information shall be deemed to be Swiftgistics’ Confidential Information. You also hereby agree that Swiftgistics may review and use your individual use of the Swiftgistics Services in order to provide Swiftgistics Services to you, to evaluate Swiftgistics’ provision of the Swiftgistics Services, and to improve Swiftgistics’ service offerings.
G. Employees. Each party acknowledges and agrees that its respective personnel employed in the performance of or in connection with the activities contemplated by this Agreement are important assets of each party. Therefore, without the prior written consent of the other party, no party will solicit for employment the employees or the officers of the other party; provided, however, that this prohibition will not apply to: (a) any general solicitation not directed exclusively or primarily to individuals providing services to the other party; (b) any solicitation of a person whose employment or contracting relationship with the other party has ceased; or (c) any hiring that results from the solicitation described in (a) or (b) above or of an individual who initiates contact with the hiring person prior to any solicitation. Such non-solicitation will be for the period of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement.
6. INDEMNITY.
You agree to indemnify and to hold harmless Swiftgistics and their officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to or arising out of your use of the Swiftgistics Services and/or your violation of the Terms or the Policies. Whether Swiftgistics accepts or refuses Inventory you agree to indemnify and hold harmless Swiftgistics from any and all claims for transportation, storage, handling and other charges relating to such Inventory, including undercharges, rail demurrage, truck/intermodal detention and other charges of any nature.
7. DISCLAIMERS.
A. AS IS. WHILE, SWIFTGISTICS WILL ENDEAVOR TO PROVIDE THE SWIFTGISTICS SERVICES IN ACCORDANCE WITH THESE TERMS, THE SWIFTGISTICS SERVICES AND THE SWIFTGISTICS WEB SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SWIFTGISTICS AND SWIFTGISTICS' SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SWIFTGISTICS SERVICES, THE SWIFTGISTICS WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF THE SWIFTGISTICS SERVICES, SWIFTGISTICS WEB SITE, OR THIRD PARTY SERVICES IS AT YOUR OWN RISK.
B. Inventory Disclaimer. Swiftgistics is not the importer of record for Inventory stored at Swiftgistics. Swiftgistics shall not be held liable for complying with your instructions through the Swiftgistics Services. You understand that Swiftgistics does not inspect your Inventory nor does Swiftgistics take responsibility for the business decisions that you make and implement through the Swiftgistics Services. For example, Swiftgistics cannot control or ensure that a buyer or seller with whom you do business will remit payment for Inventory in accordance with your agreement with them. To be clear, Swiftgistics is not the Merchant of Record for any of your Inventory. Swiftgistics is not responsible for items damaged during the pick and pack process or for breakage of items during transit that have been picked and packed by Swiftgistics.
C. No Continuous Access. Swiftgistics does not guarantee continuous, uninterrupted or secure access to the Swiftgistics Service. Operation of the Swiftgistics Services may be interfered with by numerous factors outside of our control. Swiftgistics will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Swiftgistics makes no representations or warranties regarding the amount of time needed to complete processing because our Service is dependent upon many factors outside of our control, such as delays caused by third parties.
8. LIMITATION OF LIABILITY.
A. Third Party Liability. By using the Swiftgistics Services, you acknowledge and agree that Swiftgistics disclaims all liability for the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Swiftgistics.
B. Annual Inventory Shrink-Allowance. Handling physical products could result in loss or damage of Inventory. We strive to maintain the highest standards, but occasionally facilities experience concealed shortages, product damages, mislabeled, miss-picked Inventory and/or cross-shipments. You agree that Swiftgistics will have a 1.5% shrink allowance based on the value of your account’s Inventory known to be in the facility based on the stated cost value measured on an annual basis and subject to Limitations of Liability in Section 8 below. Explainable, offsetting Inventory adjustments based on miss-marked Inventory or receiving Inventory errors will not be deemed an Inventory shrinkage event or lost Inventory.
C. Waiver of Consequential Damages and Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM EITHER PARTY’S ACCESS TO, OR USE OF, THE SITE, ANY CONTENT, OR ANY THIRD PARTY SITES AND CONTENT. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL SWIFTGISTICS' LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY YOU TO SWIFTGISTICS FOR THE APPLICABLE SWIFTGISTICS SERVICES EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). IN THE EVENT OF AN UNAUTHORIZED TRANSACTION BY A SWIFTGISTICS EMPLOYEE OR AGENT, SWIFTGISTICS IS ONLY LIABLE FOR THE DAMAGES CAP. SWIFTGISTICS MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR YOU WAIVE ALL DAMAGES FROM SWIFTGISTICS.
D. Exclusive Remedy. SWIFTGISTICS' LIABILITY REFERRED TO BELOW SHALL BE YOUR EXCLUSIVE REMEDY AGAINST SWIFTGISTICS FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS YOU PROVE BY AFFIRMATIVE EVIDENCE THAT SWIFTGISTICS CONVERTED THE INVENTORY TO ITS OWN USE. YOU WAIVE ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
E. Damage or Loss of Inventory. YOU DECLARE THAT SWIFTGISTICS' LIABILITY SHALL BE LIMITED TO $0.50 PER POUND FOR SAID LOST, DAMAGED, AND/OR DESTROYED INVENTORY. IN NO EVENT SHALL SWIFTGISTICS BE LIABLE FOR ANY LOST SALES REVENUE FROM INVENTORY LOSS. SWIFTGISTICS' MAXIMUM LIABILITY FOR INVENTORY LOSS WILL BE CAPPED AT 5% OF THE TOTAL PRODUCT VALUE OR ONE MONTH OF THE AVERAGE BILLABLE STORAGE, WHICHEVER IS LOWER (“DAMAGES CAP”).
F. Inventory Count Inaccuracies. IN THE EVENT OF INVENTORY LOSS IN EXCESS OF THE ANNUAL INVENTORY SHRINKAGE ALLOWANCE DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT SWIFTGISTICS IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND SWIFTGISTICS IS HELD LEGALLY LIABLE, YOU AGREE THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND SWIFTGISTICS' LIABILITY SHALL BE LIMITED AS STATED IN 8.E. ABOVE. IN NO EVENT SHALL SWIFTGISTICS BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
G. Projects. IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“PROJECT”), YOU DECLARE THAT SWIFTGISTICS' LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE YOU PAID TO SWIFTGISTICS FOR THE PROJECT.
H. Notice of Claim and Filing of Suit.
(1) Claims by Customer and all other persons must be presented in writing to Swiftgistics within a reasonable time, and in no event longer than 10 days after Customer learned that any part of the Inventory was lost, damaged or destroyed.
(2) No lawsuit or other action may be maintained by Customer or others against Swiftgistics for loss or destruction of or damage to the Inventory unless timely written claim has been given as provided in paragraph (1) of this Section 8.H and unless such lawsuit or other action is commenced within ten (10) days after Customer learned that any part of the Inventory was lost, damaged or destroyed.
9. TERMINATION AND CLOSING YOUR ACCOUNT.
A. Held Accounts. A held Account will be inaccessible to you, and all activity will be suspended. Swiftgistics reserves the right to place an Account on hold for a number reasons, including but not limited to the following:
B. Immediate termination. Immediate termination is where we immediately close your Account and ship remaining Inventory to the billing address listed in your Account, at your expense. If no address is available, we will liquidate your Inventory (See Abandoned Account and Liquidation for more information). Swiftgistics reserves the right to immediately terminate an Account for a number reasons including but not limited to the following:
C. Termination with 10 days notice. Swiftgistics reserves the right to terminate an Account for any reason upon 10 days notice (“Termination Notice Period”) which Swiftgistics shall send to you via email. It is your responsibility to make sure Swiftgistics has a working email for you. You may have full or limited use of your Account during the Termination Notice Period in our discretion, with the intention of allowing you to expire existing inventory without it being shipped back to you. Any Inventory that remains in Inventory at the expiration of the Termination Notice Period will be shipped to the address on file and, if address is not on file, the billing address on your credit card, at your expense. If no address is available or no balance is available to pay for shipment back to you, we will liquidate your remaining Inventory. (See Abandoned Account and Liquidation Policy for more information.)
D. Payment for Services prior to Inventory Removal. Prior to Merchant removing all Inventory following termination or expiration, Merchant shall pay Swiftgistics i) all current amounts outstanding for Service fees, transportation, storage and other fees and ii) a good faith estimate of amounts that will become due for transportation, storage and Service and other fees that will be incurred prior to the termination date.
E. Additional Actions. If you violate the Policies or these Terms, we may close, put on hold, or limit access to your Account or the Swiftgistics Services as set forth above. Without limiting any of remedies under law or equity, we may also take any actions we deem necessary or advisable, including, without limitation, any of the following actions:
10. DISPUTES.
Please note, while disagreements sometimes arise, Swiftgistics wants to address any complaint with the Swiftgistics Service in a proactive manner. To log a support case for resolution, you can send an e-mail to support@swiftgistics.com. If you feel an escalation is required, please call 435-214-4466 regarding your unresolved case and your concern. To be clear, this does not waive the notice requirement set forth below.
A. Merchant Protection is Available. Swiftgistics strongly urges you to understand that errors happen with storage and shipping, and a best practice is to protect yourself beforehand. Swiftgistics offers multiple merchant protection services that can be taken advantage of anytime. Please note these services may not be applied retroactively, and are thus best acquired at the time of your Account setup.
B. Mandatory Mediation and Arbitration of Disputes. Except for disputes relating to payment for Swiftgistics Services or as otherwise expressly provided in these Terms, all disputes arising under these Terms, any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, or otherwise from your use of or access to the website or Services, shall be determined by arbitration in Washington County, Utah (using the English language), before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures then in effect or such other rules as may be stipulated to by the parties. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.
Prior to the appointment of the arbitrator, and within 10 days from the date of commencement of the arbitration, the parties shall submit the dispute to JAMS for mediation. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in promptly scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If the dispute is not resolved within 30 days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing), the administration of the arbitration shall proceed forthwith. The mediation may continue, if the parties so agree, after the appointment of the arbitrators. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The pendency of a mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the parties agree not to defend against any application for provisional relief on the ground that a mediation is pending.
11. GOVERNING LAW AND VENUE.
These Terms and performance by the parties hereunder shall be construed in accordance with the applicable laws of the State of Utah without regard to conflicts of law provisions thereof, or, as appropriate the federal laws. Any action or proceeding arising from or relating to these Terms must be brought in a federal or state court in Saint George, Utah. You and Swiftgistics consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Saint George, Utah. Notwithstanding the foregoing, Swiftgistics may seek injunctive or other equitable relief to protect Swiftgistics’ intellectual property rights in any court of competent jurisdiction. Additionally, the parties hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or related to these Terms or the transactions contemplated hereby.
12. GENERAL PROVISIONS.
A. Severability. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of these Terms shall remain in effect and enforceable in accordance with their terms.
B. No Waiver. Failure or delay of Swiftgistics to exercise a right or power under these Terms shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
C. Notices to You. You agree that Swiftgistics may provide notice to you by posting it on our website, emailing it to the email address listed in your Account, or mailing it to the street address listed in your Account. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to the email address listed in your Account. If the notice is sent by mail, we will consider it to have been received by you three Business Days after it is sent. Swiftgistics reserves the right to terminate your Account if you withdraw your consent to receive electronic communications.
D. Notices to Swiftgistics. Except as otherwise stated, legal notices for Swiftgistics must be sent by postal mail to: Swiftgistics, Attention: Legal Department, 1076 E Commerce Dr, Suite 100, Saint George, UT 84790, and shall not be deemed to be received until actually received.
E. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without Swiftgistics’ prior written consent and any attempted assignment without that consent will be void. Swiftgistics reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Subject to the foregoing provisions of this Section, these Terms shall be binding on and inure to the benefit of the parties’ successors and assigns and Swiftgistics may provide written notice to Customer (email is sufficient) if Swiftgistics needs to move the Customers’ Inventory into a facility owned by its successor assuming the obligations under the Agreement. Customer acknowledges and agrees that the Services may be performed by an affiliate or contractor of Swiftgistics.
F. Conflict of Terms. If there is a conflict between these Terms and the terms on any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, the Terms as stated herein shall control.
G. Entire Agreement and Modifications to Terms and Policies. These Terms and the Policies are the entire statement of the terms that govern your use of the Swiftgistics Services and the Swiftgistics Website. SWIFTGISTICS MAY MAKE CHANGES TO THESE TERMS AND/OR THE POLICIES FROM TIME TO TIME IN SWIFTGISTICS' SOLE DISCRETION. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SWIFTGISTICS SERVICES OR THE SWIFTGISTICS WEB SITE AFTER SWIFTGISTICS POSTS OR OTHERWISE MAKES AVAILABLE MODIFIED TERMS AND/OR POLICIES WILL CONSTITUTE YOUR ACCEPTANCE OF THOSE MODIFIED TERMS AND POLICIES. Swiftgistics will endeavor to provide you with notice of any changes to these Terms or the Policies, but Swiftgistics’ failure to do so shall not excuse your obligation to comply with such modified Terms and Policies.
H. Attorneys’ Fees and Costs. Swiftgistics shall have the right to collect from you its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing these Terms.
I. Force Majeure. Swiftgistics will not be liable for any delay or failure to perform or loss or liability due to any cause beyond its reasonable control. Causes include, but are not limited to, events of national emergency, disease or epidemic, strikes, lock-outs or other labor disputes, industrial disturbance, war, criminal acts, acts of terrorism, acts of God, acts of the Customer or third parties, interruptions of all avenues of transportation, materials or facilities, delay or failure of any supplier critical to the delivery of Inventory or performance of the Services. In the event Swiftgistics is unable to wholly or partially perform because of any cause beyond its reasonable control, Swiftgistics may terminate any Order without liability to Customer or its clients. Swiftgistics shall not be liable for failure to carry out such instructions and Inventory remaining in storage will continue to be subject to regular storage charges. If Swiftgistics has exercised reasonable care and is unable, due to causes beyond its control, to affect delivery before expiration of the current storage period, the Inventory will be subject to storage charges for each succeeding storage period.
13. DATA PROCESSING AGREEMENT FOR SWIFTGISTICS SERVICES.
Terms for Data Processing are set forth at https://www.swiftgistics.com/hc/data-processing.html and are hereby incorporated by reference.
14. DATA PROTECTION.
A. The Parties acknowledge and agree to comply with the data protection and privacy legislation applicable to their performance of this Agreement (“Data Protection Laws and Regulations”), including without limitation, as applicable, the California Consumer Privacy Act (“CCPA”) and the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), including when using, handling, disclosing, transferring, sharing or processing in any way and for any purpose, any information that relates to an identified or identifiable individual (“Personal Data”) received from or on behalf of the other Party, for the duration of the term of this Agreement. The Parties acknowledge and agree that all Personal Data disclosed by one Party and processed by the other Party as part of this Agreement is Confidential Information of the disclosing Party and is subject to the confidentiality obligations set out in this Agreement. Notwithstanding anything to the contrary in Section 6, Swiftgistics may copy, modify, distribute, and otherwise use Personal Data received from or on behalf of Customer for purposes of providing the Services. Customer already has in place or will obtain, as applicable, and maintain in effect all permissions, consents, and authorizations that are required by applicable law for Customer to provide, or to arrange for the provision of, Personal Data to Swiftgistics. Customer represents and warrants that it has the full ability and legal right to provide and make available Personal Data to Swiftgistics as contemplated by this Agreement.
B. To the extent the CCPA applies to the Parties’ performance of this Agreement, “Personal Data” as used in this Agreement includes all “personal information” as that term is defined in the CCPA. The Parties acknowledge and agree that, with respect to the sharing of such Personal Data with Swiftgistics under this Agreement, Swiftgistics is a “service provider” as that term is defined in the CCPA. With respect to Personal Data consisting of “personal information” as that term is defined in the CCPA, Swiftgistics hereby certifies that it understands that it is prohibited from (a) selling that Personal Data (as “sell” is defined in the CCPA), (b) retaining, using, or disclosing that Personal Data for any purpose other than for the specific purpose of performing the Services or as otherwise permitted by the CCPA (including retaining, using, or disclosing the Personal Data for a commercial purpose other than providing the Services), and (c) retaining, using, or disclosing the Personal Data outside of its direct business relationship with Customer. Swiftgistics agrees that it will comply with the foregoing prohibitions.
C. Each Party acknowledges and agrees that, to the extent that Personal Data is subject to the GDPR, Customer is the “data controller” in respect of that Personal Data and Swiftgistics is the “data processor.” To the extent that Swiftgistics “processes” (as that term is defined in the GDPR) Personal Data subject to the GDPR on behalf of Customer, Swiftgistics shall:
D. Swiftgistics agrees, upon reasonable notice by Customer and once every 12 months, to submit to audits or have an independent third-party auditor, inspector, regulator, and other representative, designated in writing by Customer and subject to confidentiality obligations, to perform an audit on its behalf in order to validate Swiftgistics’ compliance with its obligations under this Agreement and the applicable Data Protection Laws and Regulations. All such audits shall be at Customer’s sole cost and expense.
E. In the event either of the Parties breaches and fails to comply with the terms and conditions on data protection provided in this Agreement, the breaching Party shall be held liable for all damages and costs incurred by the other Party.
F. Customer shall indemnify and hold Swiftgistics harmless from any liability, losses, claims, penalties, damages, costs and expenses of whatever nature, imposed by the any regulatory body on Swiftgistics and arising out of any claims, actions, proceedings or settlements, resulting from the breach or non-compliance of Customer with the terms and conditions on data protection set forth in this Agreement and/or with the applicable Data Protection Laws and Regulations.
15. HAZARDOUS MATERIALS.
A. “Hazardous Materials” means a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. 5103). The term includes hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 CFR 172.101), and materials that meet the defining criteria for hazard classes and divisions in part 173 of this subchapter. When shipping through the USPS network, additional criteria and requirements for classifying and shipping Hazardous Materials may be found in USPS Publication 52, Hazardous Materials, Restricted, and Perishable Mail.
B. Customer will obtain Swiftgistics’ written approval at least five (5) Business Days prior to shipment if any of the Inventory being shipped to Swiftgistics is classified as Hazardous Materials. Should Customer ship Hazardous Materials to Swiftgistics without Swiftgistics’ approval, Swiftgistics may either reject the shipment at the time of delivery or hold the shipment for a maximum of 72 hours, pending receipt of return shipment instructions from Customer. Shipments held for greater than 72 hours may be subject to additional storage fees. Customer will bear all handling and shipping costs incurred by Swiftgistics in shipping the Inventory back to Customer or the destination designated by Customer. If any of the Inventory is, or potentially is, classified as Hazardous Materials, the Customer will notify Swiftgistics prior to shipping any of the Inventory to Swiftgistics. Swiftgistics may accept or reject any such Inventory in its sole and absolute discretion. In the event Swiftgistics agrees to consider handling or shipping a Hazardous Material, which may be limited to those which qualify for regulatory exceptions such as a limited quantity or small lithium battery (49 CFR §173.185(c)), Customer will provide Swiftgistics and its carriers with the following, prior to the time of shipment:
All shipments classified as Hazardous Materials will be processed out of the Facility designated by Swiftgistics in its sole discretion. Dependent on the regulatory requirements and exceptions available, some Hazardous Material products may be eligible to be shipped only via ground service within the 48 US contiguous states and District of Columbia, and others may be eligible to also ship by Air. No Export shipments are allowed. The Customer will be responsible for keeping all information and materials up to date, as may be required to provide Swiftgistics and carriers with current information.
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