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Privacy Policy

ShipSwim LLC. (d/b/a
ShipSWIM) (“ShipSWIM”, “we”, “our” or “us”) offers a software platform
and suite of services intended to help our Customers run their
businesses more efficiently and effectively. We collect data about these
businesses and their customers and end users (“Data”) when they use the
platform, the services, and our websites. This privacy policy (the
“Privacy Policy”) describes how we collect, use and disclose Data.
Applicability of this
Privacy Policy
This Privacy Policy
applies to ShipSWIM’s online service tools and platform, including,
without limitation, the associated ShipSWIM mobile and desktop
applications (collectively, the “Services”), ShipSWIM.com and other
ShipSWIM websites (collectively, the “Websites”) and other interactions
(e.g., customer service inquiries, etc.) you may have with ShipSWIM. If
you disagree with the practices or terms described in this policy, you
should (a) take the necessary steps to remove cookies from your computer
after leaving our website, and (b) discontinue your use of or access to
our Services, Websites, or any other aspect of ShipSWIM’s business.
This Privacy Policy
does not apply to any third-party applications or software that
integrate with the Services through the ShipSWIM platform (“Third Party
Services”), or any other third-party products, services or businesses.
In addition, a separate agreement governs delivery, access and use of
the Services (the “Customer Agreement”), including the processing of any
messages, files or other content submitted through Services accounts
(collectively, “Customer Data”). The organization that entered into the
Customer Agreement (“Customer”) controls its instance of the Services
and any associated Customer Data. If you have any questions about
specific Customer settings and privacy practices, please contact the
Customer whose workspace you use.
Applicable Law
We comply with relevant
privacy laws, including the European Union’s General Data Protection
Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”).
Types and
Categories of Collected Data
  1. Personal Data. Data that identifies, or
    that could reasonably be used to identify, an End User as an
    individual, or our Customer as an individual, is considered “Personal
    Data”. We collect Personal Data when an End User registers for an
    ShipSWIM account, and when a Customer sends us Customer Data. The
    Personal Data we collect includes contact details such as name, email
    address, phone number, and address. We only collect Personal Data that
    is relevant to providing and improving our Services for our Customers
    and End Users.
  2. Other Data. Data other than Personal Data
    is considered “Other Data”. Other Data includes, for example,
    collecting files that record interaction with the Service (System
    Logs) or other Personal Data (such as IP Address) for operation and
    maintenance purposes. ShipSWIM collects, generates and/or receives
    Other Data through a variety of sources, including when submitted to
    our Websites, participation in a focus group, contest, activity or
    event, applications for employment, request support, interactions with
    our social media accounts or otherwise communicate with ShipSWIM. One
    particular source for Other Data is Cookies and similar technologies
    that record Data about the use of our Websites, and the use of our
    Services generally. Other Data that we may collect includes browser
    and device data, transaction data, Cookie and tracking technology
    data, and authorized third-party account data.
  3. Third-Party Data. ShipSWIM may receive
    data about organizations, industries, lists of companies that are
    customers, Website visitors, marketing campaigns and other matters
    related to our business from parent corporation(s), affiliates and
    subsidiaries, our partners, or others that we use to make our own
    information better or more useful. This Data may be combined with
    Other Data we collect and might include aggregate-level data, such as
    cities, zip codes or countries.
Certain Data is
collected automatically and, if some Data is not provided, we may be
unable to provide the Services.
How We Use and Process
Collected Data
We use and process Data
to provide our Services, in accordance with Customer’s instructions,
including any applicable terms in the Customer Agreement and Customer’s
use of Services functionality, and as required by applicable law. We
take reasonable steps to ensure that the Data is (i) needed for
ShipSWIM’s Services, and (ii) accurate, complete, and current.
Specifically, ShipSWIM
uses and processes collected Data in the following ways:
  • Personal Data. We use Personal Data to
    provide the Services, contact the End User and Customer in the
    ordinary course of business, authenticate the End User and Customer,
    handle payments, respond to inquiries, send service notices, and
    provide customer support. ShipSWIM will share and disclose Personal
    Data in accordance with a Customer’s instructions, including any
    applicable terms in the Customer Agreement and Customer’s use of
    Services functionality, and in compliance with applicable law and
    legal process.
    NOTE: WE DO NOT SELL PERSONAL DATA TO THIRD PARTIES UNDER ANY
    CIRCUMSTANCES.
  • Other Data. We may use Other Data for a
    range of different purposes, provided we comply with applicable law
    and our contractual commitments.
  • To provide, update, maintain and protect
    our Services, Websites and business. This includes use of Other Data
    to support delivery of the Services under a Customer Agreement,
    prevent or address service errors, security or technical issues,
    analyze and monitor usage, trends and other activities, or at an
    authorized Customer’s request.
  • As required by applicable law, legal
    process or regulation.
  • To communicate with you by responding to
    your requests, comments and questions. If you contact us, we may use
    your Data to respond.
  • To send emails and other communications.
    We may send you service, technical and other administrative emails,
    messages, and other types of communications. When ShipSWIM collects
    information through its marketing activities (including website and
    conference visitors, webinar subscribers and newsletter recipients),
    we act as a “Data Controller” as defined under GDPR—relying upon GDPR
    Sections 6(1)(a), (b), (c) and (f) for the lawful right to process
    your data—and as a “Business” as defined under CCPA.
  • For billing, account management and other
    administrative matters. ShipSWIM may need to contact you for
    invoicing, account management and other similar reasons, and we use
    account data to administer accounts and keep track of billing and
    payments.
  • To investigate and help prevent security
    issues and abuse.
If Data is aggregated
or de-identified so that it is no longer reasonably associated with an
identified or identifiable natural person, ShipSWIM may use it for any
business purpose, in accordance with applicable law.
How We Share and
Disclose Information
This section describes
how ShipSWIM may share and disclose Data.
  1. Data Processor. Generally, where ShipSWIM
    provides services to a Customer, the Customer acts as the Data
    Controller and processes the Data of End Users, including Other Data.
    Where the Customer is the Data Controller, the Customer represents and
    warrants that it shall take appropriate security measures to prevent
    unauthorized access, disclosure, modification or unauthorized
    destruction of the Data. ShipSWIM acts as the Data Processor on behalf
    of its Customers. When acting as a Data Processor, we use the
    following subprocessors: Amazon Web Services and Voonami. We require,
    by contract, that these subprocessors adhere to standards
    substantially similar, and at least as protective, to those set forth
    herein and provide the same level of protection as required by the
    Privacy Shield Principles.
  2. Non-Discrimination. ShipSWIM does not
    differentiate or discriminate between how it treats its End Users,
    whether or not they exercise their rights under the CCPA. This means
    we do not charge different prices or rates for goods or services,
    including through the use of discounts or other benefits, imposing of
    penalties, or providing a different level or quality of goods or
    services to you, based upon your exercise of rights under the CCPA.
  3. Third Party Service Providers and
    Partners. We may engage third-party companies or individuals as
    service providers or business partners to process Other Data and
    support our business.
  4. Corporate Affiliates. ShipSWIM may share
    Other Data with its corporate affiliates, parents and/or subsidiaries.
  • A Change to ShipSWIM’s Business. If
    ShipSWIM engages in a merger, acquisition, change of control (whether
    by operation of law or otherwise), bankruptcy, dissolution,
    reorganization, sale of some or all of ShipSWIM’s assets or stock,
    financing, public offering of securities, acquisition of all or a
    portion of our business, a similar transaction or proceeding, or steps
    in contemplation of such activities, some or all Personal Data or
    Other Data may be shared or transferred as assets, subject to standard
    confidentiality arrangements. You acknowledge that such transfers may
    occur, and that any acquirer or successor of ShipSWIM may continue to
    use your information as set forth in this policy without additional
    consent from you, provided such entity agrees to the provisions of
    this policy.
  • Aggregated or De-identified Data. We may
    disclose or use aggregated or de-identified Data for any purpose. For
    example, we may share aggregated or de-identified Data with prospects
    or partners for business or research purposes, such as telling a
    prospective ShipSWIM customer the average amount of time to ship goods
    using a particular carrier from one zip code to another.
  • To Comply with Applicable Laws,
    Regulations, or Legal Processes. We may need to disclose Personal Data
    or Other Data in response to lawful requests by public authorities,
    where we reasonably believe (i) there are legitimate law enforcement
    or national security reasons, (ii) such action is necessary to comply
    with a judicial proceeding or court order, and/or (iii) such action is
    otherwise required by applicable law
  • To Enforce Our Rights, Prevent Fraud, and
    For Safety. We may need to protect and defend the rights, property, or
    safety of ShipSWIM or third parties, including enforcing contracts or
    policies, or in connection with investigating and preventing fraud or
    security issues.
  • With Consent. ShipSWIM may share Personal
    Data or Other Data with third parties when we have consent to do so.
Age Limitations
We do not collect data
from individuals under the age of eighteen (18) years old. If you are a
parent or guardian and believe ShipSWIM has collected information from
anyone younger than eighteen (18) years old, please contact us at
privacy@ShipSWIM.com so that we may verify and subsequently take steps
to delete any such information.
Place of Processing
The Data is processed by
ShipSWIM in the United States.
Data Retention Time
The Data is kept by
ShipSWIM for the longer of the time necessary to provide the service
requested by the Customer, as stated by the purposes outlined in this
document, and the time required by ShipSWIM’s contractual obligations
with the United States Post Office.
Data Security
We use reasonable,
proportionate, and appropriate physical, electronic, and administrative
safeguards designed to protect Personal Data from loss, misuse and
unauthorized access, disclosure, alteration and destruction, taking into
account the nature of the Personal Data and the risks involved in
processing that information. ShipSWIM provides periodic training for its
employees involved in the collection, protection and dissemination of
Data in accordance with applicable law.
The Rights of End Users
End Users have the
right, at any time, to know whether their Personal Data has been stored
and can consult the Data Controller to learn about their contents and
origin, to verify their accuracy or to ask for them to be supplemented,
deleted, updated or corrected. For Customers, you can send a request for
data to be supplemented, deleted, updated or corrected from the email
account on record with ShipSWIM. In addition, you may send such requests
by post to the physical address listed below.
To opt out of our
marketing activities, please send an email to privacy@ShipSWIM.com.
ShipSWIM does not
support “do not track” requests.
To understand if any
of the third-party services it uses honor the “do not track” requests,
please read their privacy policies.
Recourse, Enforcement
and Dispute Resolution
If you have any
questions or concerns, please write to us at the address listed below.
We will investigate and attempt to resolve complaints and disputes
regarding use and disclosure of Personal Data in accordance with the
Privacy Shield Principles.
ShipSWIM’s internal
policies and procedures provide for disciplinary action if our employees
fail to follow this Privacy Policy. We periodically self-assess and
review these internal policies and procedures to ensure compliance with
applicable law.
Changes
ShipSWIM reserves the
right to change, update, modify, alter or amend this Privacy Policy from
time to time by giving notice to its Customers and End Users on this
page. It is strongly recommended to check this page often to stay
informed, referring to the date of the last update listed at the top. If
you disagree with the changes to this Privacy Policy, you should
deactivate your Services account and/or contact the Customer if you wish
to request the removal of Personal Data under their control.
Data Protection Officer
To communicate with our
Data Protection Officer, please email dpo@ShipSWIM.com.
Contact Information
Please feel free to
contact ShipSWIM if you have any questions about this Privacy Policy or
ShipSWIM’s practices, or if you are seeking to exercise any of your
statutory rights. ShipSWIM will respond within the timeframe as required
by applicable law. You may contact us at privacy@ShipSWIM.com or at our
mailing address below:
ShipSwim LLC
1163 E 50 S
Logan, UT 84321

Terms of Service –
Cloud Software

ShipSWIM’s service
enables warehousing and ecommerce companies to integrate shipping
capabilities into their business. ShipSWIM provides its services subject
to the terms and conditions contained in these Terms of Service (this
“Agreement”). By signing up for the service via
https://signup.shipswim.com or other mechanism provided you accept the
terms of this Agreement.
Please review the
terms of this Agreement carefully. Once accepted, this Agreement becomes
a binding legal commitment. If you have any questions, you can reach the
ShipSWIM team at support@ShipSWIM.com.
Cancellation
Feel free to cancel your
account at anytime. There are no long term obligations and you will only
be charged for the services you have used. You have 3 business days to
refund a billing issue as part of your cancellation process.
USPS Postage
By creating USPS labels,
you agree (1) that you bear full responsibility and liability for
obtaining authorization to reproduce and otherwise use the matter as
proposed (including, without limitation, any trademarks, slogans,
likenesses or copyrighted material contained in the image); (2) that you
in fact have the legal authority to reproduce and otherwise use the
matter as proposed; (3) that you understand that images or other matter
is not provided, approved, or endorsed in any way by the United States
Postal Service; and (4) to the United States Postal Service
Postage
Discrepancy Policy
.
1. Definitions
“Customer” means the individual accepting the terms of this
Agreement or the entity such individual represents, as applicable.
“Customer
Application”
 means a software application
that interfaces with the ShipSWIM Services and include any services
(web-based or other services) made available by Customer through that
application.
“Customer Data” means data and other information made available to
ShipSWIM through the use of the ShipSWIM Services under this Agreement.
“Documentation” means all of the instructions, code samples, on-line
help files and technical documentation made available by ShipSWIM for
the ShipSWIM Services.
“End User” means an end user of a Customer Application.
“Rate Schedule” means the schedule of fees located at
www.ShipSWIM.com/pricing, as such may be updated from time to time.
These fees are in addition to the postage required to ship a package.
“ShipSWIM Software” means an application programming interface for the
ShipSWIM Services (or feature of the ShipSWIM Services) provided to
Customer by ShipSWIM.
“ShipSWIM
Properties”
means the ShipSWIM website,
ShipSWIM Software, Documentation, and technical support made available
by ShipSWIM to Customer in connection with the ShipSWIM Services.
“ShipSWIM Services”
means the services provided by ShipSWIM to
Customer under this Agreement, including all programs, features,
functions and report formats, and subsequent updates or upgrades of any
of the foregoing made generally available by ShipSWIM, including without
limitation the ShipSWIM Software and any software provided to Customer
in connection with its use of the ShipSWIM Services.
2.1 Use of ShipSWIM
Services. Customer will be solely responsible for all use (whether or
not authorized) of the ShipSWIM Services and Documentation under its
account, including for the quality and integrity of Customer Data and
each Customer Application. Customer will take all reasonable precautions
to prevent unauthorized access to or use of the ShipSWIM Services and
notify ShipSWIM promptly of any such unauthorized access or use.
2.2 Restrictions.
Except as expressly provided in Section 2.1 (Provision of Services),
Customer will not transfer, resell, lease, license or otherwise make
available the ShipSWIM Services to third parties. In any event, Customer
will not offer the ShipSWIM Services on a standalone basis. Customer
will ensure that the ShipSWIM Services provided hereunder are used in
accordance with all applicable laws, regulations and third party rights,
as well as the terms of this Agreement, Specifically and without
limitation, Customer will ensure that ShipSWIM is entitled to use the
Customer Data as needed to provide the ShipSWIM Services and will not
use the ShipSWIM Services in any manner that violates any data
protection statute, regulation, order or similar law. Except as allowed
by applicable law, with respect to any software provided to Customer
hereunder, Customer will not reverse engineer, decompile, disassemble or
otherwise create, attempt to create or derive, or permit or assist any
third party to create or derive the source code of such software.
2.5 Changes to
Service. Customer acknowledges that the features and functions of the
ShipSWIM Services, may change over time. It is Customer’s responsibility
to ensure that calls or requests Customer makes to the ShipSWIM Services
and plugins are compatible with then-current appropriate software.
Although ShipSWIM endeavors to avoid changes to the ShipSWIM internal
APIs or software that are not backwards compatible, if any such changes
become necessary ShipSWIM will use reasonable efforts to notify Customer
at least 30 days prior to implementation.
2.6. Customer agrees
to ship all packages in their correct postal class and using accurate
information. In the event that Company discovers that a shipment is
incorrectly classified or the weight or dimensions differ, Company
reserves the right to re-bill Customer for the correct transportation
costs and any additional costs and surcharges associated with such
shipment.
3. Fees
3.1 Fees. Customer
agrees to pay the usage fees set forth in the Rate Schedule and the
prices for postage rates that are returned via ShipSWIM. Because
shipping rates may change day to day, the rates returned via the
ShipSWIM services are the most up to date. When purchasing postage
directly from ShipSWIM, Customer agrees to pay the postage rate
purchased via the ShipSWIM rate system. If payment is not received
within fifteen (15) days of the due date, or wire transfer or ACH
payment is not received within thirty (30) days of the invoice, the
ShipSWIM Service will be terminated. Fees due here under will be billed
to Customer’s credit card and Customer authorizes the card issuer to pay
all such amounts and authorizes ShipSWIM (or its billing agent) to
charge the credit card account until Customer or ShipSWIM cancels or
terminates the ShipSWIM Services as set forth above; provided that if
payment is not received from the credit card issuer, Customer agrees to
pay all amounts due upon demand. Customer must provide current, complete
and accurate billing and credit card and ACH (as applicable)
information. Customer agrees to pay all costs of collection, including
attorney’s fees and costs, on any outstanding balance. In certain
instances, the issuer of the credit card may charge a foreign
transaction fee or related charges, which Customer shall be responsible
to pay.
3.2 Net of Taxes.
Unless otherwise stated, all applicable federal, state or local taxes
and all use, sales, commercial, gross receipts, privilege, surcharges,
or other similar taxes, license fees and surcharges, whether charged to
or against ShipSWIM, will be payable by Customer. Customer will not
withhold any taxes from any amounts due to ShipSWIM.
3.3 Disputes.
Customer will notify ShipSWIM in writing in the event Customer disputes
any portion of any fees paid or payable by Customer under this
Agreement. Customer will provide such notice to ShipSWIM within 30 days
of the applicable charge and the parties will work together to resolve
the applicable dispute promptly. Upon expiration of the 30 day period
described in this Section, Customer will not be entitled to dispute any
fees paid or payable by Customer.
3.4 Suspension.
Customer acknowledges that, in the event Customer’s usage exceeds the
amounts prepaid by Customer or any other failure to pay amounts due as
described in this Section 3, ShipSWIM will be entitled suspend the
ShipSWIM Services associated with Customer’s account without prior
notice to Customer. ShipSWIM will not have any liability whatsoever for
any damage, liabilities, losses (including any loss of data or profits)
or any other consequences that Customer may incur with respect to any
suspension of ShipSWIM Services pursuant to this Section 3.
4. Ownership And
Confidentiality
4.1 Ownership Rights.
As between the parties, ShipSWIM exclusively owns and reserves all
right, title and interest in and to the ShipSWIM Services, ShipSWIM
Properties and ShipSWIM’s Confidential Information. As between the
parties, Customer exclusively owns and reserves all right, title and
interest in and to the Customer Data, Customer Applications and
Customer’s Confidential Information.
4.2 Use of Licensor
Marks. Subject to the terms of this Agreement, each party (the
“Licensor”) grants to the other party (the “Licensee”) the right to use
and display Licensor’s name and marks (the “Licensor Marks”) on its
website and in other promotional materials solely in connection with its
activities under this Agreement. All such use of the Licensor Marks will
be in accordance with the Licensor’s usage guidelines and will inure to
the benefit of Licensor. Licensee will not use, register or take other
action with respect to any of the Licensor Marks, except to the extent
authorized in advance writing by Licensor. In its efforts, Licensee will
always use the then-current Licensor Marks and will not add to, delete
from or modify any of Licensor Marks. Licensee will not, at any time,
misrepresent its relationship with Licensor. Licensee and will not
present itself as an affiliate or other legal agent of Licensor. The
license described in this Section will terminate automatically in the
event of any termination of this Agreement.
4.3
Confidentiality
(a) Definition.
“Confidential Information” means any information or data, regardless of
whether it is in tangible form, disclosed by either party that is marked
or otherwise designated as confidential or proprietary or that should
otherwise be reasonably understood to be confidential given the nature
of the information and the circumstances surrounding disclosure.
“Confidential Information” does not include any information which: (i)
is publicly available through no fault of receiving party; (ii) was
properly known to receiving party, without restriction, prior to
disclosure by the disclosing party; (iii) was properly disclosed to
receiving party, without restriction, by another person without
violation of disclosing party’s rights; or (iv) is independently
developed by the receiving party without use of or reference to the
disclosing party’s Confidential Information.
(b) Use and
Disclosure. Each party agrees that it will use the Confidential
Information of the other party solely in accordance with the provisions
of this Agreement and it will not disclose such information to any third
party without the other party’s prior written consent, except as
otherwise permitted hereunder. Each party agrees to exercise due care in
protecting the Confidential Information from unauthorized use and
disclosure. Each party may disclose the Confidential Information of the
other party, in whole or in part to its employees, representatives,
actual or potential investors and subcontractors who have a need to know
and are legally bound to keep such information confidential consistent
with the terms of this Section. Either party may disclose the
Confidential Information of the other party as required by law, upon
prior written notice to the other party (where allowed by law); provided
that such party will use its reasonable efforts to minimize such
disclosure to the extent permitted by applicable law.
4.4 Injunctive
Relief. The Parties expressly acknowledge and agree that no adequate
remedy exists at law for an actual or threatened breach of this Section
and that, in the event of an actual or threatened breach of the
provisions of this Section, the non-breaching party will be entitled to
seek immediate injunctive and other equitable relief, without waiving
any other rights or remedies available to it. Each party will promptly
notify the other in writing if it becomes aware of any violations of the
confidentiality obligations set forth in this Section.
5. Disclaimer
ShipSWIM HEREBY
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND
FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY
EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. ShipSWIM’S SERVICES AND
PROPERTIES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.
TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE
AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED
UNDER SUCH LAW.
6. Exclusion of
Damages; Limitation Of Liability
UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR
OTHERWISE, WILL ShipSWIM BE LIABLE TO CUSTOMER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST
PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN
IF ShipSWIM HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES.
UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR
OTHERWISE, WILL ShipSWIM BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES,
COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING
THE SIX MONTH PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF
THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE
PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN
IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
7.
Indemnification; Disputes
7.1 Indemnification
by Customer. Customer will defend, indemnify and hold ShipSWIM harmless
against any actual or threatened claim, loss, liability, proceeding,
third-party discovery demand, governmental investigation or enforcement
action (“Claim”) arising out of or relating to Customer’s activities
under this Agreement or Customer’s acts or omissions in connection with
the provision of the Customer Application, including without limitation,
any intellectual property claims relating to the Customer Application
and any violation by Customer or its End Users of the terms of Section
2.4 (Restrictions). ShipSWIM will cooperate as fully as reasonably
required in the defense of any Claim, at Customer’s expense. ShipSWIM
reserves the right, at Customer’s expense, to retain separate counsel
for ShipSWIM or, if Customer has not responded reasonably to the
applicable Claim, to assume the exclusive defense and control of any
matter in which Customer is a named party and that is otherwise subject
to indemnification under this Section. Customer will pay all costs,
reasonable attorneys’ fees and any settlement amounts or damages awarded
against ShipSWIM in connection with any Claim. Customer will also be
liable to ShipSWIM for any costs and attorneys’ fees ShipSWIM incurs to
successfully establish or enforce its right to indemnification under
this Section.
7.2 Governing Law.
his Agreement will be governed by the laws of the State of Nevada,
exclusive of its rules governing choice of law and conflict of laws. The
parties agree to the sole and exclusive jurisdiction of the state and
federal courts in the City and County of Las Vegas, NV.
7.3 Individual Basis
Only. It is the intent of the parties to require any claims or
controversies between them to be submitted on an individual basis only.
CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR
CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE
ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF
THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE
AGREED TO BY THE PARTIES IN WRITING.
8. Term and
Termination. The term of this Agreement will commence on the Effective
Date and continue for an Initial Service Term of 30 days. This Agreement
will automatically renew for additional terms unless either party
provides notice of non-renewal no less than 15 days prior to the end of
a renewal term. Either party may terminate this Agreement for any reason
upon 30 days written notice to the other party. Either party may also
terminate this Agreement in the event the other party commits any
material breach of this Agreement and fails to remedy such breach within
5 days after written notice of such breach. ShipSWIM may also suspend or
terminate the Services immediately upon notice for cause if: (b)
ShipSWIM determines, in its sole discretion, that its provision of any
of the Services is prohibited by applicable law, or has become
impractical or unfeasible for any legal or regulatory reason; or (c)
subject to applicable law, upon Customer’s liquidation, commencement of
dissolution proceedings, cessation of business, change of control,
disposal of Customer’s assets, assignment for the benefit of creditors,
or if Customer becomes the subject of bankruptcy or similar proceeding.
9.General
9.1 Assignment.
Customer will not assign or otherwise transfer this Agreement, in whole
or in part, without ShipSWIM’s prior written consent. Any attempted
assignment, delegation, or transfer in violation hereof will be null and
void.
9.2 Amendment;
Waiver. No modification to this Agreement, nor any waiver of any rights,
will be effective unless consented to in a writing signed by both
parties. Any waiver of any breach or default by either party will not
constitute a waiver of any other right or any subsequent breach or
default. Failure or delay by either party to enforce any provision of
this Agreement will not be deemed a waiver of future enforcement of that
or any other provision.
9.3 Relationship.
Each party is an independent contractor in the performance of each and
every part of this Agreement. Each party will be solely responsible for
all of its employees and agents and its labor costs and expenses arising
in connection therewith and for any and all claims, liabilities or
damages or debts of any type whatsoever that may arise on account of its
activities, or those of its employees or agents, in the performance of
this Agreement. Customer does not have the authority to commit ShipSWIM
in any way and will not attempt to do so or imply that it has the right
to do so.
9.4 Unenforceability.
In the event that any provision of this Agreement is held by a court or
other tribunal of competent jurisdiction to be unenforceable, such
provision will be limited or eliminated to the minimum extent necessary
to render such provision enforceable and, in any event, the remainder of
this Agreement will continue in full force and effect.
9.5 Notices. Any
notice required or permitted to be given hereunder will be given in
writing to the receiving party by personal delivery, certified mail,
return receipt requested, or by overnight delivery. ShipSWIM may use
Customer’s current address, as provided by Customer in connection with
billing and payment activities. ShipSWIM’s current address may be found
on its website.
9.6 Other Terms. This
Agreement supersedes all prior and contemporaneous proposals,
statements, sales materials or presentations and agreements, oral and
written. No oral or written information or advice given by ShipSWIM, its
agents or employees will create a warranty or in any way increase the
scope of the warranties in this Agreement. There will be no force or
effect to any different terms of any related purchase order or similar
form even if signed by the parties after the date hereof.
9.7 Force Majeure. A
party is not liable under this Agreement for non-performance caused by
events or conditions beyond that party’s control (each, a “Force Majeure
Event”) if the party makes reasonable efforts to perform. Either party
may terminate this Agreement on written notice to the other party if the
Force Majeure Event continues more than 30 days.
9.8 Government Terms.
ShipSWIM provides the ShipSWIM Services, including related software and
technology, for ultimate federal government end use solely in accordance
with the terms of this Agreement. If Customer (or any of its customers)
is an agency, department, or other entity of any government, the use,
duplication, reproduction, release, modification, disclosure, or
transfer of the ShipSWIM Services, or any related documentation of any
kind, including technical data, software, and manuals, is restricted by
the terms of this Agreement. All other use is prohibited and no rights
than those provided in this Agreement are conferred.
9.9 ShipSWIM, at its
sole discretion, reserves the right to modify the terms and conditions
as set forth under this Agreement at any time. In such case, ShipSWIM
shall notify (via email or other written communication) Customer of an
updated Agreement available for online acceptance. ShipSWIM shall
provide Customer with at least seven (7) days to accept the terms of the
updated agreement. After such period, the updated agreement shall govern
the provision of ShipSWIM Services upon the commencement of a new month
of ShipSWIM Services. Customer shall be required to accept the updated
Agreement if it desires to continue to use the ShipSWIM Services.

Terms of Service –
Warehouse Management

ShipSWIM’s services may
also include the receipt, storage, picking, shipment, and related
administrative functions, including a license to all related ShipSWIM
Software and documentation (collectively, the “Service(s)”). These
Services require Customer to deliver inventory to the ShipSWIM
warehouses. ShipSWIM provides its services subject to the terms and
conditions contained in these Terms of Service (this “Agreement”). By
signing up for the service via signup.ShipSWIM.com or other mechanism
provided you accept the terms of this Agreement. Please review the terms
of this Agreement carefully. Once accepted, this Agreement becomes a
binding legal commitment. If you have any questions, you can reach the
ShipSWIM team at support@ShipSWIM.com.
The Service Fees will
be set forth in your Customer Dashboard account.
TERMS AND CONDITIONS
DEFINITIONS
The following terms,
when used in this Agreement shall have the following meanings:
“ShipSWIM Software”
means either an application programming interface or cloud software for
the Services (or feature of the Services) provided to Customer by
ShipSWIM.
“Customer
Application” means a software application that interfaces with the
Services using the ShipSWIM Software and includes any services
(web-based or other services) made available by Customer in connection
with that application.
“Customer Data” means
data and other information made available to ShipSWIM through the use of
the Services under this Agreement.
“Documentation” means
all of the instructions, code samples, on-line help files and technical
documentation made available by ShipSWIM for the Services.
“End User” means an
end user of a Customer Application.
1. SERVICES; GRANT
OF RIGHTS
1. Subject to the terms
of this Agreement, ShipSWIM agrees to provide Customer the Services.
ShipSWIM will provide adequate space within its distribution facilities
(the “Facilities”) to efficiently and carefully handle Customer’s goods.
ShipSWIM will provide, at its sole cost and expense, all utilities
necessary to operate the Facilities and may move Customer good between
Facilities in its discretion. ShipSWIM shall provide adequate security
for the Facilities and contents thereof. ShipSWIM will maintain adequate
insurance covering the contents of the Facilities, including Customer’s
goods, against fire, theft and other casualty. ShipSWIM shall furnish
all personnel, materials, equipment, supplies and other ancillary
accessories necessary to perform safely and efficiently the Services;
provided Customer may provide customized packing material at their cost
and expense.
2. Subject to the
terms of this Agreement, ShipSWIM grants Customer a non-exclusive,
non-sublicensable, non-transferable, revocable right to:
(a) Use the
Documentation and ShipSWIM Software as needed to develop Customer
Applications;
(b) Use the Services
though the ShipSWIM Application; and
(c) Offer and make
the Services available to End Users through Customer Applications, in
accordance with the Documentation.
3. Customer will be
solely responsible for all use (whether or not authorized) of the
services and Documentation under its account, including for the quality
and integrity of Customer Data and each Customer Application. Customer
will take all reasonable precautions to prevent unauthorized access to
or use of the Services and notify ShipSWIM promptly of any such
unauthorized access or use.
4. Customer
acknowledges that the features and functions of the Services, including,
the ShipSWIM Software, may change over time. It is Customer’s
responsibility to ensure that calls or requests Customer makes to the
Services are compatible with then-current ShipSWIM Software. Although
ShipSWIM endeavors to avoid changes to the ShipSWIM Software that are
not backwards compatible, if any such changes become necessary ShipSWIM
will use reasonable efforts to notify Customer at least 60 days prior to
implementation of new ShipSWIM Softwares.
5. ShipSWIM shall
operate at all times as a warehouseman under the Uniform Commercial Code
as adopted in the State of Nevada. Customer shall not provide goods to
ShipSWIM as a named consignee.
6. Customer agrees to
ship all packages in their correct postal class and using accurate
information. In the event that Company discovers that a shipment is
incorrectly classified or the weight or dimensions differ, Company
reserves the right to re-bill Customer for the correct transportation
costs and any additional costs and surcharges associated with such
shipment.
2. RESTRICTIONS;
RESPONSIBILITIES
1. Except as expressly
provided in Section 2, Customer will not transfer, resell, lease,
license or otherwise make available the Services to third parties.
Further, Customer will not offer the Services on a standalone basis
under any circumstance. Customer will ensure that the Services are used
in accordance with all applicable laws, regulations, third party rights
and ShipSWIM policies, as well as the terms of this Agreement. Customer
will ensure that ShipSWIM is entitled (and hereby grants ShipSWIM the
rights) to use the Customer Data as needed to provide the Services, and
Customer will not use the Services in any manner that violates any data
protection statute, regulation, order or any similar law. Except to the
extent applicable law prohibits such restrictions, Customer will not
(and will not permit any third party to), directly or indirectly:
reverse engineer, decompile, disassemble or otherwise attempt to
discover the source code, object code or underlying structure, ideas,
know-how or algorithms relevant to the Services or any software,
Documentation or data related to the Services; or modify, translate, or
create derivative works based on the Services or any software (except to
the extent expressly permitted by ShipSWIM or authorized within the
Services). ShipSWIM has no obligation to monitor Customer’s use of the
Services, ShipSWIM may do so and may prohibit any use of the Services it
believes may be (or alleged to be) in violation of the foregoing.
2. Customer shall be
responsible for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Services,
including, without limitation, modems, hardware, server, software,
operating system, networking, web servers and the like (collectively,
“Equipment”). Customer shall also be responsible for maintaining the
security of the Equipment, Customer account, passwords (including but
not limited to administrative and user passwords) and files.
3. Customer will
defend, indemnify and hold ShipSWIM harmless against any actual or
threatened claim, loss, liability, action, proceeding, third-party
discovery demand, governmental investigation or enforcement action
(“Claim”) arising out of or relating to Customer’s activities under this
Agreement (including any breach hereof) or Customer’s acts or omissions
in connection with the obligations under this Agreement.
4. All shipments will
be shipped correctly within 1 business day or ShipSWIM fee will be
credited to Customers Account.
3. IP RIGHTS;
CONFIDENTIALITY
1. As between the
parties, ShipSWIM exclusively owns and reserves all right, title and
interest in and to the Services and ShipSWIM Confidential Information
and all related intellectual property rights. As between the parties,
Customer exclusively owns and reserves all right, title and interest in
and to the Customer Data, Customer Applications and Customer
Confidential Information, and all related intellectual property rights.
2. Subject to the
terms of this Agreement, each party (the “Licensor”) grants to the other
party (the “Licensee”) the right to use and display Licensor’s name and
marks (the “Licensor Marks”) on its website and in other promotional
materials solely in connection with its activities under this Agreement.
All such use of the Licensor Marks will be in accordance with the
Licensor’s usage guidelines and will inure to the benefit of Licensor.
Licensee will not use, register or take other action with respect to any
of the Licensor Marks, except to the extent authorized in advance
writing by Licensor. Licensee will always use the then-current Licensor
Marks and will not add to, delete from or modify any of Licensor Marks.
Licensee will not, at any time, misrepresent its relationship with
Licensor. The license described in this Section will terminate
automatically in the event of any termination of this Agreement.
3. “Confidential
Information” means any information or data, regardless of whether it is
in tangible form, disclosed by either party that is marked or otherwise
designated as confidential or proprietary or that should otherwise be
reasonably understood to be confidential given the nature of the
information and the circumstances surrounding disclosure. “Confidential
Information” does not include any information which: (i) is publicly
available through no fault of receiving party; (ii) was properly known
to receiving party, without restriction, prior to disclosure by the
disclosing party; (iii) was properly disclosed to receiving party,
without restriction, by another person without violation of disclosing
party’s rights; or (iv) is independently developed by the receiving
party without use of or reference to the disclosing party’s Confidential
Information.
4. Each party agrees
that it will use the Confidential Information of the other party solely
in accordance with the provisions of this Agreement and it will not
disclose such information to any third party without the other party’s
prior written consent, except as otherwise permitted hereunder. Each
party agrees to exercise due care in protecting the Confidential
Information from unauthorized use and disclosure. Each party may
disclose the Confidential Information of the other party, in whole or in
part to its employees, representatives, actual or potential investors
and subcontractors who have a need to know and are legally bound to keep
such information confidential consistent with the terms of this Section.
Either party may disclose the Confidential Information of the other
party as required by law, upon prior written notice to the other party
(where allowed by law); provided that such party will use its reasonable
efforts to minimize such disclosure to the extent permitted by
applicable law.
5. Notwithstanding
anything to the contrary, ShipSWIM shall have the right collect and
analyze data and other information relating to the provision, use and
performance of various aspects of the Services and related systems and
technologies (including, without limitation, information concerning
Customer Data and data derived therefrom), and ShipSWIM will be free
(during and after the term hereof) to (i) use such information and data
to improve and enhance the Services and for other development,
diagnostic and corrective purposes in connection with the Services and
other ShipSWIM offerings, and (ii) disclose such data solely in
aggregate or other de-identified form in connection with its business.
No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
1. Customer agrees to
pay all applicable Services Fees and the prices for postage rates that
are returned via the ShipSWIM Software. Because shipping rates may
change day to day, ShipSWIM reserves the right to change the Services
Fees or applicable charges and to institute new charges and Services
Fees, upon 7 days notice. When purchasing postage directly from
ShipSWIM, Customer agrees to pay the postage rate purchased via the
ShipSWIM Software. All Services Fees are payable in accordance with the
terms and on the schedule described in the Service.
2. Unless otherwise
stated in the Rate Schedule, all Services Fees are exclusive of
applicable federal, state or local taxes and all use, sales, commercial,
gross receipts, privilege, surcharges, or other similar taxes, license
fees and surcharges, whether charged to or against ShipSWIM, and all
such taxes, fees and charges will be the sole responsibility of and
payable by Customer. Customer will not withhold any taxes from any
amounts due to ShipSWIM. If Customer’s payment method choice is credit
card standard credit card fees (3%) apply.
3. Customers are
invoiced monthly for credit card payments and quarterly for payments
made via wire transfer or ACH. If credit card payment is not received
within fifteen (15) days of the invoice, or wire transfer or ACH payment
is not received within thirty (30) days of the invoice, the ShipSWIM
Service will be terminated. Fees due here under will be billed to
Customer’s credit card and Customer authorizes the card issuer to pay
all such amounts and authorizes ShipSWIM (or its billing agent) to
charge the credit card account until Customer or ShipSWIM cancels or
terminates the ShipSWIM Services as set forth above; provided that if
payment is not received from the credit card issuer, Customer agrees to
pay all amounts due upon demand. Customer must provide current, complete
and accurate billing and credit card and ACH (as applicable)
information. Customer agrees to pay all costs of collection, including
attorney’s fees and costs, on any outstanding balance. In certain
instances, the issuer of the credit card may charge a foreign
transaction fee or related charges, which Customer shall be responsible
to pay.
4. Customer will
notify ShipSWIM in writing in the event Customer disputes any portion of
any fees paid or payable by Customer under this Agreement. Customer will
provide such notice to ShipSWIM within 60 days of the applicable charge
and the parties will work together to resolve the applicable dispute
promptly. Upon expiration of the 60 day period described in this
Section, Customer will not be entitled (and hereby waives any right) to
dispute any fees paid or payable by Customer.
5. If Customer fails
to time pay any amounts due hereunder, ShipSWIM will (without limiting
its other rights) be entitled suspend the Services associated with
Customer’s account without prior notice to Customer. ShipSWIM will not
have any liability whatsoever for any damage, liabilities, losses
(including any loss profits) or any other consequences that Customer may
incur with respect to any suspension of Services pursuant to this
Section.
5. INVENTORY
1. Title to inventory
remains at all times with Customer. The inventory is not for sale by
ShipSWIM and ShipSWIM does not and shall not have any interest therein
or lien or claim thereon. ShipSWIM shall not permit any lien or other
encumbrance to be placed against any of the inventory while in
ShipSWIM’s possession.
2. If loss or damages
have been determined by ShipSWIM while inventory is at an ShipSWIM
fulfillment location to be due to ShipSWIM employees, agents,
contractors or representatives gross negligence or willful misconduct,
ShipSWIM Fulfillment shall reimburse Customer an amount equal to the
manufactured price for such goods provided that ShipSWIM shall reimburse
Customer only for any losses or damages to goods in excess of a loss
allowance of 0.25% of units received. If ShipSWIM reimburses Customer
for a good, ShipSWIM shall be entitled to dispose of such goods.
3. Shipping Insurance
may be negotiated with ShipSWIM should the Customer choose to purchase
said insurance for any orders that are shipped out of the ShipSWIM
fulfillment. If inventory is damaged while in shipment, ShipSWIM
disclaims all liability if shipping insurance was not previously
purchased for said shipment.
4. Confirmed receipt
of delivery by ShipSWIM does not: (a) indicate or imply that any good
has been delivered free of loss or damage, or that any loss or damage to
any good later discovered occurred after confirmed receipt of delivery;
(b) indicate or imply that ShipSWIM actually received the number of
goods specified by Customer for such shipment; or (c) waive, limit, or
reduce any of ShipSWIM rights under this Agreement. ShipSWIM reserves
the right to impose, and change from time to time, scheduling
restrictions and volume limitations on the delivery and storage of
Customer inventory in fulfillment centers, and Customer will comply with
any of these restrictions or limitations.
6. TERMINATION
1. The term of this
Agreement will commence on the Effective Date and continue for an
Initial Service Term of 30 days. This Agreement will automatically renew
for additional terms unless either party provides notice of non-renewal
no less than 15 days prior to the end of a renewal term.
2. Either party may
terminate this Agreement for any reason upon 30 days written notice to
the other party. Either party may also terminate this Agreement in the
event the other party commits any material breach of this Agreement and
fails to remedy such breach within 5 days after written notice of such
breach. ShipSWIM may also suspend or terminate the Services immediately
upon notice for cause if: (b) ShipSWIM determines, in its sole
discretion, that its provision of any of the Services is prohibited by
applicable law, or has become impractical or unfeasible for any legal or
regulatory reason; or (c) subject to applicable law, upon Customer’s
liquidation, commencement of dissolution proceedings, cessation of
business, change of control, disposal of Customer’s assets, assignment
for the benefit of creditors, or if Customer becomes the subject of
bankruptcy or similar proceeding.
3. Upon termination
or expiration of this Agreement, all rights and licenses granted to
Customer shall immediately termination, but Customer’s payment
obligations, the terms of this Section 6.3 and the terms of the
following Sections will survive: Sections 3, 4, 5 and 7-10.
7. WARRANTY AND
DISCLAIMER
1. ShipSWIM shall use
reasonable efforts consistent with prevailing industry standards to
maintain the Services in a manner which minimizes errors and
interruptions in the Services. Services may be temporarily unavailable
for scheduled maintenance or for unscheduled emergency maintenance,
either by ShipSWIM or by third-party providers, or because of other
causes beyond ShipSWIM’s reasonable control. ShipSWIM HEREBY DISCLAIMS
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS
FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY
EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT AS SET FORTH IN THIS
SECTION, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT
PERMITTED BY LAW.
8. LIMITATION OF
LIABILITY
1. UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR
OTHERWISE, WILL ShipSWIM AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO
ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST
PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER SIMILAR DAMAGES OR
LOSSES, EVEN IF ShipSWIM HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF
THE POSSIBILITY OF SUCH DAMAGES. FURTHER, UNDER NO CIRCUMSTANCES AND
UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL
ShipSWIM BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN
EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE SIX MONTHS PRECEDING
THE INCIDENT OR CLAIM.
2. THE PROVISIONS OF
THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE
PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN
IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9. GOVERNING LAW;
DISPUTES
This Agreement will be
governed by the laws of the State of Nevada, exclusive of its rules
governing conflicts of laws. This Agreement will not be governed by the
United Nations Convention on Contracts for the International Sale of
Goods. The parties agree to the exclusive jurisdiction of the state and
federal courts in the City and County of Las Vegas, Nevada.
10. GENERAL
Customer will not assign
or otherwise transfer this Agreement, in whole or in part, without
ShipSWIM’s prior written consent. Any attempted assignment, delegation,
or transfer in violation hereof will be null and void. ShipSWIM may
assign this Agreement in whole or in part. No modification to this
Agreement, nor any waiver of any rights, will be effective unless
consented to in a writing signed by both parties. Any waiver of any
breach or default by either party will not constitute a waiver of any
other right or any subsequent breach or default. Failure or delay by
either party to enforce any provision of this Agreement will not be
deemed a waiver of future enforcement of that or any other provision.
Each party is an independent contractor in the performance of each and
every part of this Agreement. In the event that any provision of this
Agreement is held by a court or other tribunal of competent jurisdiction
to be unenforceable, such provision will be limited or eliminated to the
minimum extent necessary to render such provision enforceable and, in
any event, the remainder of this Agreement will continue in full force
and effect. Any notice required or permitted to be given hereunder will
be given in writing to the receiving party by personal delivery,
certified mail, return receipt requested, or by overnight delivery.
ShipSWIM may use Customer’s current address, as provided by Customer in
connection with billing and payment activities. ShipSWIM’s current
address may be found on its website. This Agreement supersedes all prior
and contemporaneous proposals, statements, sales materials or
presentations and agreements, oral and written and contains the entire
understanding of the parties on the subject matter hereof. No oral or
written information or advice given by ShipSWIM, its agents or employees
will create a warranty or in any way increase the scope of the
warranties in this Agreement. A party is not liable under this Agreement
for non-performance caused by events or conditions beyond that party’s
control (each, a “Force Majeure Event”) if the party makes reasonable
efforts to perform. Either party may terminate this Agreement on written
notice to the other party if the Force Majeure Event continues more than
30 days.