SwiftSku, Inc.
SWIFTSKU IQ Service Agreement
Version 1.1; Updated 3.17.2026
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 Service Agreement” (the “Effective Date”).
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, USING THE SERVICES, OR INSTALLING THE SWIFTSKU IQ MODULE CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, HAS REVIEWED AND ACCEPTED THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THE SERVICE AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS AND WARRANTS THAT HE OR SHE IS NOT A MINOR OR INCOMPETENT AND EITHER IS THE CUSTOMER, OR IS CUSTOMER’S AUTHORIZED AGENT WITH AUTHORITY TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE CUSTOMER. In consideration of the foregoing, the parties agree as follows:
I. DEFINITIONS
A.“Authorized User” means any natural person that Customer authorizes to use the Services in connection with Customer’s account.
B.“Customer Reports” means any analysis provided in conjunction with the Services which Customer may remotely access, view and download at www.swiftsku.com (or such other URL or access as SwiftSku may provide).
C.“Documentation” means any user manuals, online resources, ancillary documents, terms, schedules, disclosures, policies, advertising materials or other ancillary documentation made available to Customer with respect to the Services, as may be amended or added to from time to time by SwiftSku, including documentation in any format or language.
D.“Enterprise Data” means all information collected, processed or stored by, or transmitted 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.
E.“Indemnified SwiftSku Parties” means SwiftSku, its officers, directors, employees, parents, subsidiaries, shareholders, successors, assigns and Third Parties.
F.“Payment Processing Provider” means any third‑party payment processor or financial service provider that facilitates payment processing, fund transfers, or settlement in connection with the Services.
G.“Services” means the services that SwiftSku will provide to Customer under this Agreement including, without limitation, access to the System, the SwiftSku IQ Module, SwiftMart marketplace functionality, SwiftSupply wholesale marketplace functionality, and any related payment processing, settlement, or third-party platform integrations made available to Customer.
H.“System” means SwiftSku’s proprietary system of servers, hardware, software, web pages, applications, devices, technology, or other properties or resources, including any fixes, updates or upgrades and specifically including the SwiftSku IQ Module, the SwiftMart marketplace interface, and the SwiftSupply wholesale marketplace interface, which are used to provide the Services to Customer.
I.“Term” is defined in Section XII, “Term and Termination,” below.
J.“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 (including Payment Processing Providers) 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.
K.The words “include” and “including” mean “including but not limited to.”
II.THE SYSTEM
A.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 website at www.swiftsku.com, as such policies may be updated from time to time.
B.Documentation. Customer may reproduce and use the Documentation solely as necessary to support its Authorized Users’ use of the System.
C.System Revisions. SwiftSku may revise System features and functions at any time, which includes removal of such 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.
D.Consent to Electronic Communication. Customer acknowledges, agrees and hereby gives its consent that SwiftSku may communicate with and provide legal notice to Customer 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 non-compliance, 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.
E.Privacy Policy. Customer acknowledges that SwiftSku collects, uses, and discloses personal information in connection with the Services as described in SwiftSku’s Privacy Policy, available at www.swiftsku.com/privacy-policy (or such other URL as SwiftSku may designate). The Privacy Policy, as updated from time to time, is incorporated into this Agreement by reference. Customer represents that it has reviewed the Privacy Policy and will ensure that its use of the Services, and its collection and provision of information to SwiftSku, complies with applicable law.
F.Data Retention and Destruction. SwiftSku maintains a Data Retention and Destruction Policy applicable to information processed in connection with the Services. A summary of such policy is available at www.swiftsku.com/data-retention-policy (or upon request). Customer acknowledges that SwiftSku may retain and delete data in accordance with such policy and applicable law. Nothing in this Agreement requires SwiftSku to retain data beyond the periods set forth in its Data Retention and Destruction Policy.
III.DELIVERY AND USE OF ENTERPRISE DATA
A.Delivery of Enterprise Data. Customer shall obtain and maintain active, working internet connection for the SwiftSku IQ Module and shall ensure that Enterprise Data related to Customer stores is provided to SwiftSku in real time.
B.License to and Use of Enterprise Data.
i.Customer hereby grants SwiftSku a non-exclusive, transferable, and sublicensable 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’s 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, and interest in and to SwiftSku Processed Data and any Third Party Processed Data to SwiftSku, provided, however, that SwiftSku and such Third Party may mutually agree otherwise regarding Third Party Processed Data in writing.
ii.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.
iii.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 III.B.i. and III.B.ii. 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
A.Hardware; Purchase and Replacement. Customer’s use of the Services requires the purchase of one or more SwiftSku IQ Module hardware units from SwiftSku. Hardware pricing, specifications, and purchase terms are set forth in the applicable order form, packing slip, or other commercial documentation provided by SwiftSku at the time of purchase. SwiftSku may, in its discretion, replace any SwiftSku IQ Module hardware unit that SwiftSku determines to be defective or non-functional. If SwiftSku provides a replacement unit, Customer shall return the original unit to SwiftSku within the timeframe specified in the applicable replacement notice or documentation. If Customer fails to return the original unit within the specified timeframe, SwiftSku may charge Customer a replacement fee in the amount set forth in the applicable replacement notice or documentation, and Customer authorizes SwiftSku to collect, withhold or deduct such fee in accordance with the payment terms of this Agreement. All hardware units provided to Customer remain subject to the license restrictions set forth in Section IV.H of this Agreement, and Customer shall not modify, disassemble, reverse engineer, or tamper with any SwiftSku IQ Module hardware.
B.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.
C.Delivery of Enterprise Data; Accuracy and Completeness. Functionality and quality of 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.
D.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.
E.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.
F.Compliance with Laws. In its use of the System, Customer will comply with all applicable laws, including laws governing the protection of personally identifiable information, 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.
G.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.
H.Nonexclusive License. Subject to the terms and conditions of this Agreement, (a) SwiftSku grants Customer a limited, revocable, non-exclusive, non-sublicensable license to the software, firmware, and other proprietary technology installed on, embedded in, or used in connection with 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. Customer acknowledges that the purchase of SwiftSku IQ Module hardware does not convey any ownership of, or license to, SwiftSku’s software, firmware, algorithms, or other intellectual property, except as expressly set forth in this Section IV.H.
I.Payment. Customer agrees to make timely payments of all fees associated with the use of the Services. Customer agrees to provide all information, documentation and credentials 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 Payment Processing Providers. Customer authorizes SwiftSku (or its Payment Processing Providers) 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 account 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 outstanding balance 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.
J.Authorization; Automated Price Book Updates. Customer authorizes SwiftSku to enroll 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.
K.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.
L.Additional Features; Trials. From time to time, SwiftSku may offer and Customer may accept 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.PAYMENT PROCESSING; SETTLEMENT; LIMITED AGENCY
A.Limited Payment Collection and Settlement Agency. In connection with certain Services that enable Customer to receive payments from end consumers through third‑party consumer ordering platforms, Customer hereby appoints SwiftSku as a limited payment collection and settlement agent solely for the purpose of (i) receiving settlement funds attributable to transactions fulfilled by Customer through the Services, (ii) deducting applicable fees, chargebacks, reversals, refunds, or other amounts authorized under this Agreement, and (iii) remitting net proceeds to Customer. Title to and ownership of all funds attributable to Customer transactions remain with Customer at all times, subject only to the limited authorization expressly granted in this Section V.
B.No Banking or Financial Institution Services. Customer acknowledges and agrees that SwiftSku is not a bank, or other financial institution, does not provide banking or financial services, and does not hold funds for the benefit of Customer except in a transient, technical, and ministerial capacity as expressly authorized herein. No fiduciary, trust, partnership, escrow, or similar relationship is created between SwiftSku and Customer as a result of SwiftSku’s limited payment collection and settlement activities.
C.Payment Processing Providers; Processor Terms; Customer Obligations. Payment processing, fund transfers, and settlement services in connection with payment‑enabled Services are performed by one or more Payment Processing Providers. Customer acknowledges that SwiftSku does not itself process payments and that Payment Processing Providers operate independently from SwiftSku. Customer agrees that participation in payment‑enabled Services is conditioned on Customer’s ongoing compliance with the requirements of this Section V, including the following obligations:
i.Notices and Consents. Customer will provide all notices and obtain all consents required under applicable law for SwiftSku and the Payment Processing Providers to process Customer information, transaction data, and related operational data for payment processing, settlement, fraud prevention, compliance, risk management, and related purposes. Customer will not make any statements to end consumers (including in any Customer privacy policy) that are inconsistent with such notices and consents.
ii.End Consumer Disclosures and Acceptance. Customer acknowledges and agrees that, prior to any of Customer’s end consumers engaging with or using payment‑enabled Services, Customer will provide such end consumers with clear and conspicuous notice of the applicable Payment Processing Provider’s terms of service and privacy policy, as provided or made available to Customer by SwiftSku, and shall obtain all legally required consents, authorizations, and acknowledgments. Customer further agrees to ensure that such disclosures are maintained and updated as necessary to remain compliant with applicable law and any requirements communicated by SwiftSku or the applicable Payment Processing Provider. For clarity, applicable privacy policies include, without limitation, Astra’s Privacy Policy (https://astrafi.com/privacy) and Plaid’s Consumer Privacy Policy (https://plaid.com/legal/#consumers), as each may be updated from time to time. Customer further acknowledges that use of certain payment‑enabled Services may require end consumers to establish accounts directly with, and accept and comply with, the applicable Payment Processing Provider’s terms of service and privacy policy, and Customer will not permit any end consumer to engage with payment‑enabled Services unless and until such notice, account registration, and acceptance have occurred, as applicable.
iii.Audit Cooperation and KYC/KYB and Sanctions Compliance. Customer acknowledges and agrees that Customer and its end consumers may be subject to Know Your Customer (“KYC”), Know Your Business (“KYB”), sanctions, and Office of Foreign Assets Control (“OFAC”) screening requirements imposed by Payment Processing Providers and Third Parties. Customer agrees to cooperate, and to cause its end consumers to cooperate, with any reasonable requests by SwiftSku, a Payment Processing Provider, or another Third Party for information, documentation, or verification reasonably necessary to satisfy such requirements, including with respect to a standard or representative sample of Customer accounts, end consumers, or transactions. Failure to timely provide complete and accurate information or to cooperate with such requests may result in suspension, restriction, or termination of payment‑enabled Services, without liability to SwiftSku.
iv.Information and Verification. Customer will provide accurate and complete information and documentation reasonably necessary to establish, verify, and maintain Customer’s eligibility to receive settlements and use payment‑enabled Services, including information needed for identity verification, business verification, sanctions screening, and fraud prevention.
v.Data Sharing Consent. Customer authorizes SwiftSku to share Customer information, transaction data, and related operational data with the Payment Processing Providers as reasonably necessary to facilitate payment processing, settlement, compliance, identity verification, fraud prevention, dispute handling, and risk management. SwiftSku disclaims all responsibility and liability for the availability, performance, security, or operation of Payment Processing Provider systems, platforms, or networks, including outages, processing delays, settlement failures, or errors caused by or attributable to any Payment Processing Provider or other Third Party.
D.Eligibility; Prohibited Uses. Customer will not use, and will not permit any use of, payment‑enabled Services in connection with Prohibited Activities. “Prohibited Activities” means any use of the payment‑enabled Services in connection with any of the following:
i.Prohibited business types or activities, including gambling, sweepstakes, cannabis‑related products, firearms or weapons, controlled substances, pharmaceuticals, adult entertainment, debt collection, unregistered money services business activity, dealing in precious metals, stones, or jewels, or white‑labeled ATM services;
ii.Prohibited geographies, including enabling verified users based outside the United States or merchants or businesses based outside the United States in connection with payment‑enabled Services; and
iii.Prohibited users, including users under eighteen (18) years old or users unable to provide required taxpayer identification information (such as an SSN or ITIN) where such information is required for payment processing, compliance, or settlement.
Customer acknowledges that SwiftSku and Payment Processing Provider may suspend or restrict payment‑enabled Services if SwiftSku or Payment Processing Provider reasonably determines that Customer’s use presents compliance, fraud, or program risk, or violates this Section V.D.
E.Authorization; Direction of Funds; Debits. Customer authorizes SwiftSku and the Payment Processing Provider to receive, route, transfer, and settle funds on Customer’s behalf in accordance with the Services, to deduct applicable fees, chargebacks, reversals, refunds, reserves, and other amounts authorized under this Agreement, and to remit net settlement proceeds to the payout account(s) designated by Customer. Customer further authorizes SwiftSku, on an ongoing and recurring basis and without further notice, to initiate debits from Customer’s designated operational or payout account(s) to satisfy any amounts owed by Customer under this Agreement, including amounts arising from chargebacks, ACH returns, reversals, interchange or network fees, fines, penalties, or other liabilities or fees assessed in connection with payment processing or settlement. Customer represents and warrants that all payout and operational account information provided to SwiftSku is accurate, valid, and current, and that Customer’s designated account(s) are eligible to receive and send transfers and maintain sufficient funds to cover amounts owed under this Agreement.
F.Chargebacks; Returns; Reversals; Negative Balances. Customer bears sole, absolute, and unconditional responsibility for all chargebacks, ACH returns, payment reversals, disputed transactions, fraud, refunds, fines, penalties, interchange or network fees, and related costs or fees arising from or related to transactions fulfilled by Customer, regardless of cause, fault, timing, or third‑party determination. Customer acknowledges that Payment Processing Providers may debit SwiftSku, impose negative balances, or assess fees or liabilities in connection with chargebacks, returns, reversals, or network rules, and Customer agrees that SwiftSku may pass through and recover such amounts from Customer as provided in this Section V. If any such amounts result in a negative balance owed by Customer, SwiftSku may, without limiting any other rights or remedies:
i.offset such amounts against future settlement proceeds otherwise payable to Customer;
ii.debit Customer’s designated operational or payout account(s);
iii.require immediate repayment; and/or
iv.suspend, withhold, delay, or terminate settlement payouts or Customer’s participation in payment‑enabled Services until the negative balance is resolved to SwiftSku’s reasonable satisfaction.
Customer agrees that SwiftSku has no obligation to advance funds to Customer, or to continue to permit Customer to participate in payment‑enabled Services, while Customer has any outstanding negative balance or unresolved payment‑related liability.
G.Settlement Timing; No Guarantee. Customer acknowledges and agrees that settlement timing is not guaranteed. Any stated, estimated, or historical settlement timelines are provided for informational purposes only and may vary. Settlement may be delayed, suspended, reversed, or adjusted due to payment processor requirements, banking or network constraints, ACH return codes, fraud or risk reviews, compliance checks, consumer ordering platform practices, or other Third Party actions or dependencies outside of SwiftSku’s control, including after funds have been provisionally credited. SwiftSku shall have no liability for any delay, failure, reversal, or adjustment of settlement timing resulting from or attributable to any such Third Party systems, networks, or actions. Without limiting the foregoing, SwiftSku disclaims all responsibility and liability for outages, disruptions, errors, or failures of systems, networks, or services operated by Third Parties, including Payment Processing Providers.
H.Reserves; Holds; Risk Controls. SwiftSku may require Customer to maintain reserves, prefunded balances, rolling holds, or minimum account balances to cover potential chargebacks, returns, reversals, interchange or network fees, or other payment‑related liabilities. Such reserves or holds may be imposed on a transaction‑level, daily, rolling, or other basis as SwiftSku reasonably determines to manage risk or as necessary to support payment processing and settlement. If Customer fails to satisfy any reserve, hold, or risk‑control requirement, or if Customer attempts to reconcile outstanding negative balances fail, SwiftSku may impose limits, suspend Customer activity, suspend or withhold payouts, or restrict or terminate Customer’s participation in payment‑enabled Services.
I.Third Party Dependencies. Without limiting the payment‑specific provisions of this Section V, Customer acknowledges that the Services rely on, interoperate with, or are dependent upon Third Party systems and networks, including consumer ordering platforms, delivery providers, financial institutions, network operators, and/or other service providers not controlled by SwiftSku. SwiftSku shall not be responsible or liable for any interruptions, delays, errors, data inaccuracies, service failures, unavailability, or other issues concerning the Services to the extent caused by or resulting from the acts or omissions of such Third Parties, outages or degradation of Third Party systems or networks, or other events beyond SwiftSku’s reasonable control.
VI.SWIFTMART MARKETPLACE AND THIRD‑PARTY DELIVERY SERVICES
A.SwiftMart Platform Role. SwiftSku may make available, as part of the Services, a technology‑enabled marketplace interface branded as SwiftMart. SwiftMart is intended solely to provide a software interface and technical integration that enables Customers to publish product information and transmit order and related transactional data between Customers and independent Third Parties, including consumer ordering platforms and delivery networks operated by third-party service providers. SwiftMart is a software‑based interface and technical integration and does not constitute a retail store, seller, distributor, fulfillment provider, or delivery service. SwiftSku’s role with respect to SwiftMart is limited to providing access to software, systems, and related technical integrations that enable Customers to connect with Third Parties. SwiftSku does not sell, resell, or offer for sale any products made available through SwiftMart, does not take title to or ownership of any goods, and does not control Customer inventory, product selection, or availability. SwiftSku does not independently determine or control the commercial terms on which Customers offer products for sale through SwiftMart. However, SwiftSku may, and Customer authorizes SwiftSku to, on a standing or transaction-specific basis, configure, determine, update, test, or adjust pricing, discounts, or promotions on the Customer’s behalf, including through automated tools, algorithmic optimization, or other features made available as part of the Services. SwiftSku may exercise its judgment in setting or adjusting pricing without obtaining prior approval for each individual pricing decision. As between SwiftSku and the Customer, the Customer remains solely responsible for all taxes, fees, discounts, promotions, and other terms of sale applicable to its products, including compliance with applicable laws and platform requirements. All transactions conducted through SwiftMart are transactions solely between the Customer and the applicable end consumer. SwiftSku does not provide delivery, logistics, or courier services in connection with SwiftMart and does not control or direct the performance of any Third Party involved in ordering, payment processing, or delivery. Nothing in this Agreement or in connection with SwiftMart shall be deemed to create any agency, partnership, franchise, joint venture, fiduciary, or similar relationship between SwiftSku and any Customer, end consumer, delivery provider, or other Third Party. Each party acts as an independent contractor, and no party has authority to bind, represent, or act on behalf of any other party.
B.Merchant of Record; Retailer Responsibilities. With respect to all transactions conducted through SwiftMart, the Customer is the merchant of record. As between SwiftSku and the Customer, the Customer bears sole and exclusive responsibility for all products offered for sale through SwiftMart and for all aspects of each transaction with end consumers. The Customer is solely responsible for ensuring that all products made available through SwiftMart, and the offering, sale, and fulfillment of such products, comply with all applicable federal, state, and local laws, rules, regulations, and industry standards. This responsibility includes compliance with laws governing consumer protection, product safety, labeling, advertising, pricing, taxation, and the sale of regulated or restricted goods. The Customer retains exclusive responsibility for determining the legality of all products offered through SwiftMart and for ensuring that no prohibited, unlawful, or non‑compliant products are listed or sold. The Customer is solely responsible for the accuracy, completeness, and legality of all product descriptions, menus, images, pricing information, disclosures, warnings, and other content provided in connection with SwiftMart, including any representations made to end consumers. Where products offered through SwiftMart are subject to age restrictions or other eligibility requirements, the Customer is solely responsible for compliance with all applicable age‑verification and restricted‑product laws and requirements. SwiftSku does not perform age verification, does not monitor Customer compliance with such requirements, and disclaims all responsibility for the sale or delivery of age‑restricted or regulated products. The Customer is solely responsible for setting and collecting all prices, taxes, fees, deposits, and other amounts charged to end consumers in connection with SwiftMart transactions. To the extent SwiftSku receives and distributes funds as part of payment processing or settlement services, SwiftSku acts solely as a limited collection and settlement agent on behalf of the Customer and does not control pricing, tax treatment, or fee structures. SwiftSku makes no representations regarding the accuracy or completeness of Customer pricing or tax information.
C.Order Fulfillment and Delivery Allocation. The Customer is solely responsible for the fulfillment of all orders received through SwiftMart. This responsibility includes, without limitation, accepting or rejecting orders, preparing products for fulfillment, picking and packing items, managing substitutions, ensuring order accuracy, and making orders available for pickup or delivery in accordance with the Customer’s operational practices and applicable Third Party requirements. The Customer bears sole responsibility for any order errors, delays, cancellations, or failures attributable to store operations, inventory inaccuracies, preparation delays, or other acts or omissions of the Customer or its personnel. SwiftSku has no responsibility for, and disclaims all liability arising from, such fulfillment‑related issues. Delivery services in connection with SwiftMart are performed, if at all, by independent Third Parties. SwiftSku does not employ, contract with, or control delivery providers and does not supervise or direct delivery performance. SwiftSku makes no representations or warranties regarding delivery timing, delivery quality, or delivery outcomes and disclaims all liability for delays, failures, losses, or damages arising from delivery services performed by Third Parties.
D.Third‑Party Platforms; Incorporation of Third‑Party Terms. SwiftMart relies on Third Parties, including consumer ordering platforms, delivery providers, payment processors, and other service providers, to enable ordering, payment processing, and delivery functionality. The Customer acknowledges and agrees that use of SwiftMart is conditioned upon the Customer’s acceptance of, and ongoing compliance with, all applicable Third Party terms, policies, and requirements. To the extent the Customer accesses SwiftMart through, or in connection with, a Third Party platform or service, the terms and conditions of such Third Party shall govern the Customer’s use of that platform or service solely with respect to such Third Party functionality. SwiftSku is not a party to such Third Party agreements and does not assume responsibility for their performance, enforcement, or interpretation. SwiftSku disclaims all liability for the availability, operation, performance, security, or reliability of Third Party systems, platforms, or services, including any outages, delays, errors, or failures attributable to Third Parties.
E.Indemnification; Relationship to Existing Liability Provisions. In addition to, and without limiting, the indemnification obligations set forth elsewhere in this Agreement, the Customer agrees to indemnify, defend, and hold harmless SwiftSku and its Third Party partners, service providers, and delivery platforms from and against any and all claims, demands, damages, losses, liabilities, costs, and expenses arising out of or relating to the Customer’s participation in SwiftMart or any transaction conducted through SwiftMart. Such claims include, without limitation, claims arising from or related to the Customer’s products, regulatory or legal violations, product safety issues, mislabeling, advertising or disclosure deficiencies, pricing or tax errors, fulfillment or inventory errors, and delivery‑related issues attributable to the Customer’s acts or omissions. The indemnification obligations set forth in this subsection are subject to, and do not expand or modify, the limitation‑of‑liability provisions, exclusions of damages, and liability caps set forth elsewhere in this Agreement.
F.Flow Down Provisions. Customer agrees to comply with the terms in Exhibit A, as may be updated from time to time, which apply to Customer’s participation in SwiftMart and related marketplace features. Customer acknowledges that certain provisions in Exhibit A are intended to reflect or pass through requirements imposed on SwiftSku by its Third Party partners, payment processors, and delivery platforms, and that compliance with such provisions is a condition of Customer’s continued access to SwiftMart.
VII.SWIFTSUPPLY WHOLESALE MARKETPLACE
A.SwiftSupply Platform Role. SwiftSku may make available, as part of the Services, a wholesale marketplace offering branded as “SwiftSupply,” through which Customers may browse and purchase products from third-party brands, distributors, or other suppliers (each, a “Supplier”) using the SwiftSku platform. SwiftSupply is provided solely as a technology-enabled interface that facilitates order placement, payment authorization, and related transactional workflows between Customers and Suppliers. SwiftSku is not a seller, distributor, or reseller of products offered through SwiftSupply and is not a party to any transaction between a customer and a supplier. SwiftSku does not manufacture, sell, or supply any products offered through SwiftSupply, does not take title to or ownership of any such products, and is not a party to any transaction between Customer and any Supplier. All Suppliers are independent third parties and are not agents, employees, or affiliates of SwiftSku.
B.Payment Authorization; Supplier Fund Flows. Customer acknowledges that SwiftSupply transactions involve the transfer of funds from Customer to the applicable Supplier in payment for products purchased through SwiftSupply. In connection with such transactions, Customer authorizes SwiftSku and the applicable Payment Processing Providers, in accordance with Section V of this Agreement, to initiate debits from Customer’s designated account(s) in the amount of the applicable purchase price, together with any processing fees, adjustments, or other amounts authorized under this Agreement, and to remit such funds to the applicable Supplier on Customer’s behalf. All payment processing, settlement, chargeback, return, reversal, reserve, and related provisions set forth in Section V of this Agreement apply to SwiftSupply transactions.
C.Customer Responsibility; No Agency. As between SwiftSku and the Customer, the Customer remains solely responsible for all purchase decisions, payment obligations, disputes with Suppliers, product evaluation and selection, taxes, fees, and compliance with applicable laws relating to wholesale purchases made through SwiftSupply. SwiftSku makes no representations or warranties regarding the quality, availability, suitability, or legal compliance of any products offered by Suppliers through SwiftSupply. Any disputes regarding product quality, delivery, defects, or returns are solely between Customer and the applicable Supplier, and SwiftSku has no obligation to mediate or resolve such disputes. Nothing in this Agreement shall be deemed to create any agency, partnership, fiduciary, or similar relationship between SwiftSku and any Supplier or Customer beyond the limited, transaction-specific payment authorizations expressly set forth in this Agreement. Customer’s indemnification obligations under Section X of this Agreement extend to any claims, losses, or liabilities arising out of or relating to Customer’s use of SwiftSupply, including disputes with Suppliers and claims relating to products purchased through SwiftSupply.
VIII.INTELLECTUAL PROPERTY RIGHTS
A.Rights to the System and Services. As between Customer and SwiftSku, SwiftSku retains all right, title, and interest in and to the System and the Services, including all software used to provide the System and all graphics, user interfaces, logos, and trademarks 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.
B.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 decompile 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, trade names, 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, service 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.
C.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.
IX.REPRESENTATIONS & WARRANTIES
A.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 IX.A, 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 IX.A and for potential or actual intellectual property infringement by the System or Services.
B.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, (d) it is organized under the laws of a state of the United States, and maintains its principal place of business in the United States; (e) it does not engage in, facilitate, or support any business types, activities, products, users, or uses that are prohibited under this Agreement, including those categories set forth in Section V.D, and has not used, and will not use, the Services in connection with any such Prohibited Activities; and (f) it complies, and will continue to comply, with all applicable federal, state, and local laws, rules, and regulations relating to the products and services it offers or sells, consumer transactions and disclosures, age‑restricted or regulated products, and the acceptance, processing, and settlement of payments through the Services. 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.”
C.Warranty Disclaimers.
i.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.
ii.Connectivity. The Services rely on the regular synchronization of Customer’s systems and SwiftSku’s servers. Where such synchronization does not occur in a timely fashion, SwiftSku will endeavor to contact the Customer. It is Customer’s responsibility to ensure and maintain active internet connection for the SwiftSku IQ Module. SwiftSku will not be liable for Customer’s failure to 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.
iii.Transactional Inaccuracies. Certain functionality of the Services create a method for Third Party vendors to offer rebates for certain purchases. However, such functionality relies on the accurate reporting of transactions to SwiftSku. Customer shall be fully responsible directly to any such Third Party vendor for any fraudulent, inaccurate or other transactions that result in rebates or other Third Party credits being improperly issued. SwiftSku disclaims any liability to Customer for any such transactions. Customer shall comply with any Third Party rebate program requirements in order to use such functionality of the Services.
iv.Services; Additional Features; Trial Services. Customer is subject to risks which cannot be foreseen or fully appreciated by any business intelligence services. Customer’s business, management, marketing and operations inherently involve risk to the Customer. Customer is ultimately responsible for any of Customer’s business, management, marketing or operational practices and decisions and the impacts and outcomes of the same. Services, additional features and trial services may be developed, improved, revised or adjusted based upon additional data, improved algorithms, new modeling and/or validation. Functionality, integrity and quality of the Services and of any Additional Features or trial services requires consistent delivery of accurate and precise data in real time over time. Enterprise Data and all input, delivery, handling, processing of Enterprise Data may contain errors and omissions and that it is ultimately Customer’s responsibility to ensure that all Enterprise Data is complete, accurate, timely and available. SwiftSku shall not be liable to Customer for any pricing discrepancies, errors or omissions, or recommendations based upon same.
v.Cooperation with Law Enforcement. SwiftSku may share any information provided to it under the Services, including Enterprise Data, to law enforcement upon a lawful request or, in its sole discretion, to protect itself or third parties. Where law enforcement requires disclosure of Enterprise Data, SwiftSku will endeavor to (i) disclose only information necessary to satisfy the legal request and (ii) where permitted by law and regulation, keep Customer apprised of such disclosures so that Customer may assist and comply with such disclosures.
vi.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 OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) SWIFTSKU HAS 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.
X.INDEMNIFICATION
A.To the extent permitted by applicable law, Customer will indemnify, hold harmless and defend the Indemnified SwiftSku Parties at Customer’s expense, from any and all third-party 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 account harasses, defames, or defrauds a third party or violates any applicable law, rule, regulation, restriction, guidance or industry standard (d) claims related to Customer’s responsibilities 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; (v) any chargebacks, ACH returns, payment reversals, disputed transactions, fraud, fines, penalties, interchange fees, or other processor‑related liabilities arising from or related to transactions conducted by Customer or on Customer’s behalf through payment‑enabled Services; (vi) any inaccuracy, misrepresentation, or failure by Customer to provide complete and accurate information in connection with identity verification, business verification, KYC/KYB, OFAC, sanctions screening, or other compliance or risk‑management requirements; (vii) Customer’s engagement in, or facilitation of, any Prohibited Activities (as defined in Section V.D), including any transaction, sale, or other activity involving prohibited business types, products, users, or uses described in Section V.D; (viii) any consumer, governmental, or third‑party claims arising out of or relating to Customer’s fulfillment of orders, delivery practices, product quality, product safety, labeling, age‑restricted sales, substitutions, cancellations, refunds, or interactions with end consumers, including claims involving third‑party delivery providers to the extent attributable to Customer conduct or operations; (ix) any regulatory investigation, enforcement action, fine, penalty, assessment, or sanction arising from Customer’s business operations, products, sales practices, or use of the Services, including violations of consumer protection, payments, data protection, or product‑specific laws; and (x) any claims with respect to acts or omissions of any third party in connection with the Services, the System or Customer Reports to the extent such claims arise from Customer’s conduct, instructions, products, or transactions. 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.
B.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.
XI.LIMITATION OF LIABILITY
A.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 (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
B.Exclusion of Consequential Damages. IN NO EVENT WILL SWIFTSKU BE LIABLE TO CUSTOMER FOR LOST REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SWIFTSKU WAS ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
C.Clarifications & Disclaimers. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN SWIFTSKU AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
XII.TERM AND TERMINATION
A.Term. The term of this Agreement (the “Term”) will commence on the Effective Date and 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.
B.Termination for Cause. Customer may terminate this Agreement for any material breach by SwiftSku after the Customer provides written notice to SwiftSku of such breach 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 immediately upon written notice to Customer.
C.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. SwiftSku may, in its sole discretion, elect to repurchase any SwiftSku IQ Module hardware from Customer at a price determined by SwiftSku and communicated to Customer in writing. In the event that SwiftSku does not elect to repurchase the SwiftSku IQ Module hardware, Customer shall retain ownership of such hardware; provided, however, that all licenses to SwiftSku software, firmware, and proprietary technology granted under this Agreement, including the license set forth in Section IV.H, will terminate immediately upon the effective date of termination or non-renewal, and Customer shall make no further use of any such software, firmware, or proprietary technology following termination.
XIII.DISPUTE RESOLUTION; ARBITRATION
A.Arbitration Agreement; Mandatory Binding Arbitration. This Agreement and all claims arising out of or related to this Agreement or the Services excluding claims for injunctive relief shall be resolved by binding arbitration on an individual basis under the terms of this Section XIII (“Arbitration Agreement”). Unless otherwise agreed to, all arbitration proceedings 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.
B.Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, 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.
C.Governing Law and Jurisdiction. Arbitration will be governed solely by federal arbitration law, the Federal Arbitration Act, and/or the laws of the State of Alabama without 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 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 own costs with respect to any arbitration.
D.Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF 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.
E.Class Action Waiver. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
XIV.MISCELLANEOUS
A.Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf without prior authorization.
B.Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving 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:
SwiftSku, Inc.
Attn: Legal
5432 Geary Blvd, Unit #726
San Francisco, CA 94121
United States
Email: legal@swiftsku.com
C.Force Majeure. SwiftSku will be excused from performance of this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. Nothing shall excuse a party’s obligations to pay any fees due.
D.Severability; Intent. If any provision of this Agreement is held to be invalid or unenforceable 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.
E.Applicable Law and Venue. This Agreement will be governed by and construed under the 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.
F.Technology Export. Customer will not: (a) permit any third party to access or use the System in violation of any United States 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 United States 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.
G.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.
H.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.
I.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.
J.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.
K.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. Customer 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 URL provided 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.
L.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.
M.Survival. 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, Subsection VI.E (“Indemnification; Relationship to Existing Liability Provisions”), Representations and Warranties From Customer, Warranty Disclaimers, Limitation of Liability, Term and Termination, and Miscellaneous.
Exhibit A
Flow‑Down Terms – Vroom Delivery
This Exhibit A sets forth certain flow‑down obligations applicable to Customer’s participation in marketplace and delivery‑enabled features of the Services, including SwiftMart and any integrations with third‑party consumer ordering or delivery platforms.
Customer acknowledges that SwiftSku integrates with Vroom Delivery, Inc. (“Vroom”) and that Vroom, in turn, integrates with third-party consumer ordering platforms and delivery providers (including DoorDash, Uber Eats, Grubhub, and similar platforms). As a condition of participating in SwiftMart and related Services, Customer agrees to comply with the requirements set forth in this Exhibit A and any additional reasonable platform-related requirements communicated by SwiftSku from time to time to reflect operational, compliance, or technical requirements imposed by Vroom or applicable third-party platforms.
Without limitation, Customer agrees that:
1.Customer will comply with all applicable merchant-facing policies, operational standards, and platform rules of any third-party consumer ordering or delivery platform through which Customer’s products are offered.
2.Customer will comply with all content, menu, product listing, pricing, tax, refund, and dispute resolution requirements applicable to such platforms.
3.Customer will comply with all applicable delivery, packaging, labeling, and restricted-product requirements imposed by such platforms or by applicable law.
4.Customer will cooperate with SwiftSku and Vroom in connection with any platform investigations, disputes, chargebacks, or compliance reviews relating to Customer’s products or transactions.
Vroom Flow-Down Provisions.
Customer agrees to comply with the following categories of provisions relating to the Vroom Platform:
1.Defined Terms. For purposes of this Exhibit A only, the following terms have the meanings set forth below. These definitions are intended to reflect the usage of such terms in SwiftSku’s reseller agreement with Vroom.
a.“Platform” means Vroom’s internet and mobile ordering software platform, including any optional enhancements, as made available to Customer through the Services and integrated with SwiftSku’s services.
b.“Combined Product” means the integrated offering consisting of the Platform together with SwiftSku’s services and any related integrations or enhancements made available to Customer through SwiftSku.
2.Vroom Account and Platform Fund Flow. In connection with the Services, Vroom may establish and maintain accounts with third‑party consumer ordering platforms and delivery service providers (including DoorDash, Uber Eats, Grubhub, and similar platforms) in Vroom’s own name. Customer acknowledges and agrees that, in such cases, transaction proceeds generated through those platforms may be received, processed, and managed by Vroom through Vroom‑controlled accounts, subject to the terms and conditions governing Customer’s participation in such Services and any applicable third‑party agreements. SwiftSku does not control, and shall have no responsibility or liability for, the establishment, operation, or management of such platform accounts or the handling of funds by Vroom, except as expressly set forth in this Agreement.
3.Termination Upon Agreement Termination. Customer acknowledges and agrees that Vroom shall have the right to terminate Customer’s access to and use of the Platform upon the earlier to occur of: (i) the termination or expiration of SwiftSku’s agreement with Vroom under which the Platform is made available; or (ii) the termination or expiration of Customer’s Agreement with SwiftSku. The duration of Customer’s right to use any optional Platform enhancements shall be subject to the applicable terms and conditions set forth in this Exhibit A.
4.Termination for Flow‑Down Breach or Unlawful Activity. Customer further acknowledges and agrees that Vroom shall have the right to terminate Customer’s access to and use of the Platform if Customer breaches any of the Vroom flow‑down requirements set forth in this Exhibit A. Without limiting the foregoing, Vroom may terminate such access if Customer sells or attempts to sell any product or service that violates applicable law or the terms and conditions of any payment processing agents designated by Vroom from time to time (each, a “Payment Agent”).
5.Removal of Prohibited Products or Services. Customer acknowledges that Vroom shall have the right to remove from the Platform any products or services offered by Customer that violate or are prohibited by applicable law or the terms and conditions of any applicable Payment Agent.
6.End‑Customer Accounts; Vroom Terms and Privacy Policy. Customer acknowledges and agrees that end customers who place orders through the Platform must create an account to use the Platform. By creating such an account and using the Platform, end customers are required to agree to Vroom’s platform terms and conditions available at https://www.vroomdelivery.com/terms, and any information provided by end customers in connection with the creation or use of such accounts shall be subject to Vroom’s privacy policy available at https://www.vroomdelivery.com/privacy, as each may be updated from time to time.
7.Operating Requirements Applicable to Customer Use of the Platform. Customer acknowledges and agrees that the following operating requirements apply to Customer’s use of the Platform as part of the Combined Product:
a.Electronic Payments. All orders placed through the Platform shall be paid for using credit cards, debit cards, or other acceptable forms of electronic payment, which may be processed by Vroom or an applicable Payment Agent and collected through the Platform.
b.Payment Processing Terms. Customer shall comply with all applicable payment processing terms and conditions imposed by Vroom or any applicable third‑party Payment Agent in connection with transactions processed through the Platform.
c.Processing Fees. Costs and fees for credit card, debit card, and other payment processing by Vroom or any Payment Agent (“Processing Fees”), at rates determined by Vroom from time to time, will be deducted from amounts otherwise payable to Customer. Processing Fees may change to reflect market or third‑party processing costs, and SwiftSku shall provide notice of any such changes.
d.Settlement of Proceeds. Vroom may arrange for electronic funds transfer (EFT/ACH) payments to SwiftSku of transaction proceeds received from third‑party processing agents, net of applicable Processing Fees. ACH or similar transfer fees may apply and may be deducted from net transaction proceeds.
e.Government Benefit Programs. Collection costs, if any, arising from the sale of products purchased using SNAP, EBT, or other government benefit programs through the Platform may be deducted from net proceeds otherwise payable.
f.Cash Payments. Any procedures permitting Customer to accept cash payments in connection with orders placed through the Platform shall be subject to approval by both Vroom and SwiftSku. Customer acknowledges that SwiftSku may be required to maintain a valid credit card on file for use in processing transactions associated with cash payments accepted by Customer.
g.Compliance with Laws; Regulated Products. Customer shall at all times comply with all applicable federal, state, and local laws, including laws governing the sale, marketing, delivery, and fulfillment of alcohol, tobacco, or other regulated or age‑restricted products.
h.Age and Identity Verification. If deliveries of alcohol, tobacco, or other regulated or age‑restricted products are made by Customer personnel, Customer shall be solely responsible for ensuring that such personnel obtain all required age and identity verification from end customers in compliance with applicable law.
i.Third‑Party Delivery Providers. Customer shall comply with all applicable terms and conditions imposed by third‑party delivery or fulfillment providers used in connection with Platform transactions, including providers such as Uber Eats or DoorDash.
j.Delivery Fees. Delivery fees charged to end customers shall be determined by Customer. Customer shall be responsible for payment of fees owed to any third‑party delivery or fulfillment contractors, and such amounts may be deducted from transaction proceeds otherwise payable to Customer.
k.Cancelled Orders Attributable to Customer. Cancelled orders resulting from errors or omissions by Customer’s store(s) or by third‑party delivery or fulfillment contractors may be subject to charges equal to applicable Processing Fees and related costs for such orders, as well as any fees or charges assessed by third‑party service providers.
l.Cancelled or Returned Orders Not Attributable to Customer. For cancelled or returned orders not attributable to Customer’s store(s) or third‑party delivery or fulfillment contractors, Processing Fees collected may be credited back to SwiftSku, net of third‑party processor fees, after which SwiftSku may credit applicable amounts to Customer.
m.Limits on Processing Fee Refunds. Processing Fees will be refunded only for cancelled orders for which Vroom is able to void the applicable transaction prior to submission for settlement with its payment processors, regardless of fault.
n.Chargebacks. Customer shall be responsible for all credit card chargebacks and associated fees assessed by Vroom’s or any Payment Agent’s third‑party payment processors.
o.Tax and Refund Configuration. Prior to adding products for online ordering through the Platform, Customer shall notify SwiftSku which products are subject to sales or other applicable taxes and which products are subject to refunds, credits, or other adjustments, including applicable amounts.
p.Access to Sales and Order Information. Sales and order information relating to Customer transactions obtained or maintained by Vroom may be made available to Customer upon request, subject to Vroom’s applicable procedures.
q.Platform Use Restrictions. Customer acknowledges and agrees that it shall not, directly or indirectly:
i.use the Platform beyond the scope of the license granted to it;
ii.authorize anyone else to use, copy or otherwise exploit the Platform, its content or its concept, in whole or in part;
iii.modify, translate, fix, adapt, reverse engineer or otherwise create derivative works or improvements of the Platform or any part thereof;
iv.combine the Platform any part thereof with, or incorporate the Platform or any part thereof in, any other programs;
v.take any action intended to interfere with the operation of the Platform;
vi.access or attempt to access any portion of the Platform to which Customer has not been granted access;
vii.misrepresent its identity, or allow any of its authorized users to misrepresent their identity, in the registration portion of the Platform;
viii.remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Platform, including any copy thereof;
ix.use the Platform to develop a competing software product based on or incorporating any content, code or other materials created by Vroom or its licensors;
x.use the Platform in violation of any federal, state or local law, regulation or rule; and
xi.rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Platform available to any third party for any reason. Customer further acknowledges that the Platform constitutes the confidential and trade secret information of Vroom.
r.Platform Hosting and Availability. Customer acknowledges that the Platform is hosted by third‑party infrastructure providers independent of Vroom and SwiftSku and may be unavailable from time to time due to maintenance, updates, or circumstances beyond Vroom’s control. Uninterrupted availability is not guaranteed.
s.Limitation of Liability. To the maximum extent permitted by applicable law, customer acknowledges and agrees that neither vroom nor its affiliates shall be liable for any interruption, delay, or inability to use the platform, lost revenues or profits, loss of data, loss of business or goodwill, or any indirect, incidental, consequential, exemplary, special, or punitive damages, regardless of theory of liability or foreseeability.
8.Confidentiality and Data; Vroom Platform. Customer agrees to the following terms regarding confidentiality and data in connection with Customer’s access to and use of the Vroom Platform:
a.Confidential Information. “Confidential Information” means any proprietary technical or business information of either party, including proprietary technology and software (including Vroom Platform technology and in‑store processes), inventions, trade secrets, documentation, manuals, service delivery materials, research and development results, financial information regarding sales, costs, and profits, employee information, business plans, business developments, and pricing information. Vroom’s Confidential Information includes all Vroom Data.
b.Use and Disclosure Restrictions. During the period in which Customer has access to the Vroom Platform and thereafter, each receiving party shall not use the disclosing party’s Confidential Information for any purpose other than performing its obligations under this Agreement and shall not disclose such Confidential Information to any third party except to employees or agents who require access for such purposes and who are bound by confidentiality obligations no less protective than those set forth herein.
c.Disclosure of Sales Data. Customer acknowledges that Vroom may disclose anonymized information regarding Customer’s online store sales (“Sales Data”) to its agents, lenders, and current or prospective investors, provided that such Sales Data does not identify Customer or any end user by name.
d.Ownership of Data. Customer acknowledges and agrees that data submitted by end users (other than Customer) to the Platform, or otherwise collected through the Platform, including user profile, account, and cross‑platform data, constitutes “Vroom Data” and is owned by Vroom. Vroom will require such end users to consent to Vroom’s terms and privacy policy in compliance with applicable law. Data submitted by Customer and used by the Platform remains Customer’s property, except to the extent otherwise provided in Customer’s agreement with SwiftSku (“Customer Data”).
e.Permitted Use of Customer Data by Vroom. Notwithstanding any other provision of this Agreement, Customer acknowledges that Vroom may use Customer Data during and after the term of Platform:
i.in order to process any payment or similar information;
ii.in the continued furtherance of the Platform and the essential purposes of the reseller agreement between Vroom and SwiftSku;
iii.in response to any subpoenas, court orders or legal process, or to establish or exercise Vroom’s legal rights and to defend against legal claims;
iv.if Vroom believes it is necessary to share information in order to investigate, prevent or take action with regards to illegal activities, suspected frauds, violations of the terms of this Exhibit A, or as otherwise required by law;
v.if Vroom is acquired by or merged with another company or transfers a portion of its business or assets and the merged entity or transferee assumes the obligations of Vroom herein;
vi.if necessary to protect or enforce Vroom’s rights after giving prior notice to Customer to enable Customer to seek a protective order; and
vii.with any business or person authorized in writing by Customer or SwiftSku. Vroom will protect Customer’s data in accordance with industry standards and all applicable Laws.
9.KDS System Requirements. For purposes of this Exhibit A, the “KDS System” means the kitchen display system and related software and services made available by Vroom as part of the Vroom Delivery Omnichannel KMS powered by Fresh KDS, which integrates Vroom’s ordering platform with Fresh Technology, Inc.’s kitchen management software and tablet‑based kitchen display hardware to support order routing, preparation, and fulfillment workflows. If Customer uses the KDS System in connection with the Platform: (a) Customer shall comply with Fresh Technology, Inc.’s applicable end‑user terms of service and policies, as updated from time to time and available at https://www.fresh.technology/legal/terms-of-service; and (b) Customer shall not disassemble, decompile, reverse engineer, or otherwise deconstruct, in whole or in part, the KDS System or any related software, hardware, or components.
10.Processing Fees Charged to SwiftSku; Third Party Platform Settlements. Customer acknowledges and agrees that, in connection with transactions processed through third‑party consumer ordering and delivery platforms (including, without limitation, DoorDash, Uber Eats, Grubhub, and similar service providers), Vroom may establish and maintain platform accounts in its own name and that transaction proceeds payable by such third‑party platforms for Customer transactions will be received, routed, and managed through Vroom‑controlled accounts. Customer further acknowledges that Vroom may deduct applicable processing fees and other authorized amounts from such transaction proceeds in accordance with this Agreement, and that the remaining net transaction proceeds will be remitted to SwiftSku. Customer understands that such processing fees are charged to SwiftSku by Vroom and are reflected through settlement deductions or adjustments, and that Customer is not required to make payment directly to Vroom for such fees.
11.Third‑Party Beneficiary. Customer acknowledges and agrees that Vroom is an intended third‑party beneficiary of this Agreement solely for purposes of enforcing the Vroom flow‑down requirements set forth in this Exhibit A.
12.Marketplace Aggregator (Optional Platform Enhancement). Customer acknowledges that, if Customer elects to use the optional marketplace aggregation functionality made available through the Platform (the “Marketplace Aggregator”), such functionality enables Customer to integrate and manage orders and menu information across third‑party eCommerce and marketplace channels external to the Platform.
a.Order Management. Customer acknowledges that, through the Marketplace Aggregator, inbound consumer transactions originating from external sales channels (such as DoorDash or Uber Eats) may be displayed in Customer’s store for notification, printing, and fulfillment purposes. Such external transactions are placed by consumers directly through third‑party platforms and are not originated or processed through the Platform itself.
b.Menu Management. Customer acknowledges that, through the Marketplace Aggregator, Customer’s online ordering menus, inventory data, and pricebook information may be transmitted to third‑party marketplace channels for display on their respective websites or applications in connection with external sales transactions.
c.Hardware and Operational Responsibility. Customer shall be solely responsible for all costs associated with purchasing, installing, testing, maintaining, and operating any in‑store hardware required to support Marketplace Aggregator functionality, as well as for employee training related thereto.
d.Non‑Exclusivity. Customer acknowledges that the Marketplace Aggregator is a commercial product owned and controlled by Vroom and that Vroom may make similar or identical functionality available to other customers or third parties at its discretion.
13.Kiosk Sales Terminal Program (Optional Platform Enhancement). Customer acknowledges that, if Customer elects to use the optional kiosk‑based ordering functionality made available through the Platform (the “Kiosk Sales Terminal Program”), such functionality enables Customer’s in‑store consumers to view menus and place orders for prepared food or other items through in‑store terminals, tablets, or similar devices (each, a “Kiosk”).
a.Kiosk Transactions. Customer acknowledges and agrees that sales transactions initiated by consumers through Kiosks (“Kiosk Sales”) will be processed through the Platform together with other amounts, if any, due in connection with Customer’s online Platform sales.
b.Order Fulfillment. Customer acknowledges that orders placed through Kiosks are fulfilled by Customer and picked up by consumers at Customer’s physical store locations.
c.Kiosk Payment Processing. If Kiosk Sales are paid for directly through a Kiosk, Customer acknowledges that credit card or debit card payments may be collected by Vroom or an applicable third‑party processor designated for Kiosk transactions (a “Kiosk Processor”), and that applicable payment processing fees may be deducted from amounts otherwise payable to Customer in accordance with the payment terms applicable to the Platform.
d.Processing Fee Changes. Customer acknowledges that payment processing fees applicable to Kiosk Sales may change from time to time to reflect third‑party processing costs, and that SwiftSku will provide notice of any such changes.
e.Hardware Responsibility. Customer shall be solely responsible for all costs associated with purchasing, installing, maintaining, and replacing Kiosks and any related equipment necessary for Kiosk operation, including tablets, printers, stands, adapters, payment card readers, and similar devices.
f.Implementation and Operational Costs. Customer shall be solely responsible for all costs and expenses related to the development, deployment, testing, training, and ongoing operation of the Kiosk Sales Terminal Program within Customer’s stores.
14.Vroom Delivery Omnichannel KMS powered by Fresh KDS (Optional Platform Enhancement). Customer acknowledges that, if Customer elects to use the optional integration known as the Vroom Delivery Omnichannel KMS powered by Fresh KDS (the “Vroom Delivery KMS”), such integration enables the use of the KDS System as part of the Combined Product in connection with order management and kitchen operations.
a.License Scope. Customer acknowledges and agrees that its right to use the KDS System as part of the Vroom Delivery KMS is limited, non‑exclusive, non‑transferable, and non‑sublicensable, and is granted solely for Customer’s internal business use in connection with the Combined Product, subject to this Agreement and the applicable Fresh KDS Terms of Service.
b.Equipment Responsibility. Customer shall be solely responsible for the purchase, installation, maintenance, replacement, and operation of all equipment necessary to use the Vroom Delivery KMS and the KDS System, including any displays, tablets, peripherals, or related hardware.
c.Optional Enhancement Term. Customer acknowledges that Customer’s right to use the Vroom Delivery KMS is subject to an optional enhancement term (the “Optional Enhancement Term”) selected by Customer and communicated through SwiftSku, which may be on a monthly or annual basis, and which is subject to automatic renewal unless earlier terminated as provided below.
d.Termination of Optional Enhancement. Customer’s right to use the Vroom Delivery KMS may be terminated prior to the end of the applicable Optional Enhancement Term: (a) by SwiftSku or Vroom upon written notice to Customer; or (b) by Fresh Technology, Inc. in accordance with the Fresh KDS Terms of Service.
e.Effect of Termination. Upon expiration or termination of Customer’s Optional Enhancement Term for the Vroom Delivery KMS, Customer shall cease all use of the KDS System and any related software or services provided as part of the Vroom Delivery KMS.
15.Ads Monetization Program (Optional Platform Enhancement). Customer acknowledges that, if Customer elects to participate in the optional ads monetization functionality made available through the Platform (the “Ads Monetization Program”), Customer’s participation is subject to the following flow‑down requirements and to any applicable Vroom advertising program terms made available from time to time.
a.Grant of Advertising Rights. Customer grants Vroom and its advertising partners and licensors the right to solicit advertisers and to sell, place, manage, and display advertisements in connection with Customer’s online storefronts or listings made available through the Platform, in accordance with Vroom’s advertising placement, ranking, and ordering logic.
b.Prohibited Advertising Activity. Customer shall not, and shall not permit any third party to, engage in invalid or improper activity in connection with advertisements, including spam, non‑human traffic, automated impressions or clicks, misleading solicitations, paid‑for clicks, or any activity intended to artificially inflate impressions, clicks, conversions, or advertising performance metrics.
c.Use of Customer Branding. Customer acknowledges that Vroom and its advertising partners may use Customer’s name and logo in promotional or marketing materials solely to identify Customer as a participant in the advertising network and to describe audience reach or inventory availability.
d.Alcohol Advertising. Customer acknowledges that advertisements for alcoholic beverage products may be displayed in connection with Customer’s storefronts where permitted by law, unless Customer provides written notice requesting opt‑out of specific categories of alcohol advertising in accordance with applicable Vroom procedures. Customer shall not restrict lawful alcohol advertising placement, pricing discussions, or brand participation where such advertising is permitted.
e.Advertising Data Sharing. Customer authorizes Vroom and its advertising partners to process and use data necessary to display, deliver, measure, and optimize advertisements, including sales, impressions, and engagement data associated with Customer’s storefronts, and to use such data for reporting, campaign performance, and advertising system improvement.
f.Use of Aggregated and Multi‑Source Data. Customer acknowledges that Vroom may use aggregated or multi‑source sales and advertising data derived from Customer’s storefronts, together with data from other participants, for advertising investment, reporting, demand analysis, and ad targeting purposes, provided that Customer is not identified as the source to direct competitors.
g.Data Protection Compliance. Customer represents and warrants that it has provided all legally required notices and obtained all necessary consents from end users to permit the processing and use of advertising‑related data as contemplated by the Ads Monetization Program and applicable law.
h.Advertising Intellectual Property. Customer acknowledges that all advertising technology, advertising systems, campaign data, performance metrics, and related intellectual property used in connection with the Ads Monetization Program are owned by Vroom or its advertising partners. Customer shall not copy, misuse, interfere with, or attempt to derive proprietary information from such advertising systems.
i.Feedback License. Customer grants Vroom and its affiliates a perpetual, irrevocable, royalty‑free, non‑exclusive right to use, incorporate, and commercially exploit any feedback, suggestions, or recommendations provided by Customer relating to the Ads Monetization Program.
j.Advertising Disclaimer. Customer acknowledges that advertising services are provided on an “as‑is” and “as‑available” basis and that Vroom does not guarantee advertising performance, revenue, impressions, clicks, or campaign results.
k.Advertising Liability Limitation. To the maximum extent permitted by applicable law, Customer agrees that Vroom and its affiliates shall not be liable for any losses, damages, or claims arising out of or relating to Customer’s participation in the Ads Monetization Program, including interruptions, errors, incompatibilities, or advertising performance outcomes.
l.Advertising Data Authorization. If Customer elects to participate in the Ads Monetization Program, Customer authorizes Vroom and its advertising partners and their respective licensors to collect, process, use, and share data associated with Customer’s stores and end‑user interactions for purposes of rendering, delivering, measuring, optimizing, and reporting on advertisements and related advertising services.
i.Categories of Authorized Data. Customer acknowledges and agrees that the data authorized under this subsection may include, without limitation, the following categories of data, as applicable to Customer’s participation in the advertising program:
1.Advertising Events and Interactions. Technical data generated in connection with the serving of advertisements, including whether an advertisement was served, rendered, viewed, clicked, or otherwise interacted with, as well as contextual information such as page type, ad placement, position of sponsored products among displayed results, user agent, and IP address.
2.Browsing and Engagement Data. Data relating to end‑user interactions with non‑advertising content, including impressions, clicks, visits to product listings, brand pages, browsing journeys, and conversion points.
3.Search Query Data. Search terms entered by end users when searching for products, together with related impressions, clicks, and conversions.
4.Cart Interaction Data. Information regarding items added to or removed from end‑user shopping carts, including interactions originating from sponsored advertisements, organic product listings, brand pages, or shoppable display or video advertising units.
5.Order and Transaction Data. Order‑level data, including product identifiers, pricing, quantities, and transaction details, collected in real time, as well as historical order data for a trailing period used to improve advertising relevance and performance.
6.Catalog and Product Data. Product catalog information provided by Customer, including inventory and pricing data, which may be enhanced using third‑party data sources and used to develop, display, and optimize advertising content.
7.Dynamic Profile and Targeting Data. Data derived from historical user interactions that may be used by Vroom to generate dynamic profiles for advertising targeting and personalization of sponsored product rankings.
8.Session and Device Context. Session‑level and device‑related data passed in connection with advertising requests, including device type, operating system, platform, application version, locale, ZIP code, and similar contextual information.
9.Store Context Data. Location‑based data identifying the physical store selected by an end user for pickup or delivery, including store ZIP code or similar geographic indicators.
10.Sales and Performance Data. Aggregated sales data, including total sales amounts for advertisable products, used for advertising measurement, reporting, and optimization.
ii.Collection and Transmission Methods. Customer acknowledges that the foregoing data may be collected and transmitted through a combination of real‑time application programming interfaces (APIs), event‑based tracking systems, batch data transfers, periodic synchronization processes, and similar technical means operated by or on behalf of Vroom and its advertising partners.
iii.Program Updates. Customer acknowledges that Vroom may update the categories or technical methods of data collection and sharing applicable to the advertising program from time to time, subject to notice provided through reasonable means, including electronic notice.
iv.End‑User Consents. Customer represents and warrants that it has provided all legally required notices and obtained all necessary consents from end users to permit the collection, processing, and use of advertising‑related data as described in this subsection and under applicable law.
16.Data Protection and Privacy. Customer represents and warrants that any personal data made available, provided, or otherwise permitted to be collected or processed in connection with the Platform, the Ads Monetization Program, or related services is collected and handled by Customer in compliance with all applicable data protection and privacy laws.
a.Notices and Consents. Customer represents and warrants that it has provided all legally required notices and disclosures to, and obtained all legally required consents from, end users whose personal data is processed in connection with the Platform or advertising‑related services, including consents necessary for data processing, targeted advertising, analytics, and measurement activities.
b.Privacy Policy. Customer agrees to post, maintain, and make accessible an accurate and up‑to‑date privacy policy applicable to Customer’s online storefronts or sites that: (a) complies with applicable data protection and privacy laws; and (b) accurately describes Customer’s data collection, use, and disclosure practices, including the use of cookies, pixels, beacons, local storage, or similar technologies by third parties for analytics, advertising, or targeting purposes.
c.Accuracy and Lawful Use of Data. Customer is solely responsible for the accuracy, lawfulness, and permitted use of personal data provided or made available by Customer in connection with the Platform and related services.
d.Consumer Privacy Requests. Customer acknowledges that Vroom may notify Customer of consumer privacy requests it receives that relate to Customer data and agrees to timely respond to and fulfill such requests as required by applicable law. Customer authorizes Vroom to redirect end users to Customer where necessary to allow Customer to respond directly to such requests.
e.Security Incident Cooperation. Customer agrees to reasonably cooperate with Vroom in connection with the investigation, mitigation, and notification of any security incident affecting Customer data to the extent required by applicable law, including by providing information reasonably necessary for Customer to satisfy its legal obligations.
f.Regulatory Inquiries. Customer acknowledges that Vroom may notify Customer if Vroom receives a legally binding request from a regulatory authority relating to Customer data and agrees to cooperate in good faith in responding to such inquiry, where action by Customer is required under applicable law.
g.Subprocessors. Customer acknowledges and agrees that Vroom may engage advertising partners, licensors, affiliates, and other subprocessors to process data in connection with the services, provided that such subprocessors are subject to data protection obligations consistent with applicable law.
h.Data Retention and Deletion. Customer acknowledges that, upon termination or expiration of applicable services, Vroom may delete or retain Customer‑related personal data in accordance with applicable law, regulatory obligations, and Vroom’s data retention practices, including retention of de‑identified or aggregated data where permitted.
