Terms of Service

Updated: 19 October, 2021

End-User Representations

By purchasing these products and services as indicated in the online order form, you (the entity purchasing (the “Customer” or “you”)) from Swift Navigation, Inc. (“Swift” or “we”) certify that the facts contained herein are true and correct to the best of your knowledge and you do not know of any additional facts that are inconsistent with the facts made in this statement.

You further certify the following:

1. The services will not be used other than the end use specified at the time of purchase in the online order form.


2. The services will be used for non-military end-use(s) in the country named in your account and will not be redirected, shared, re-sold, or re-exported, directly or indirectly to any third party.


3. The services will not be used for foreign military purposes or for any purpose connected with chemical, biological or nuclear weapons, or for missiles capable of delivering such weapons.


4. You have read through the Skylark Terms and agree to be bound by the terms thereof.


5. If you are certifying these terms on behalf of your employer or another legal entity, you certify that you have the full legal authority to make these certifications on behalf of your employer or such entity.

Skylark Terms

THESE SKYLARK TERMS constitute a legally binding agreement between you (the “Customer” or “you”) and Swift Navigation, Inc. (together, with its affiliates, “Swift”, “we”, “our” or “us”) governing your use of the SaaS-based service(s) provided by Swift Skylark as indicated in the online order form (the “Services” or “Skylark”).

YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “PLACE YOUR ORDER” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, OR ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH SWIFT. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Services, whichever is earlier. If you accept or agree to these Terms on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. In such an event, “Customer”, “you”, and “your” will refer to and apply to your employer or such other legal entity.

Your use of the Services constitutes your acceptance of and agreement to all of the terms and conditions in these Terms, the End User Representations (as applicable), the Online Terms of Use , and any future amendments and additions to these Terms as we may publish from time to time. The End User Representations and the Online Terms of Use are incorporated by reference into these Terms and together form and are hereinafter referred to as these “Terms”. As a condition of using the Services, you are also agreeing to the terms of our Privacy Policy, which may be updated from time to time, as expressed in the most recent version that exists at the time of your use. The most current version of our Privacy Policy may be found on our website at any time.

1. DEFINITIONS.
   
   
   1. “Customer Data” means any Customer-specific data or other information provided or submitted to or through the Services.
   
   
   2. “Device” means any Customer-owned or managed mechanical, electromechanical, and/or electronic machine, such as a vehicle, that is capable of connecting to the Services and transmitting Customer Data (including location coordinates) to the Service and/or receiving data from the Services.
   
   
   3. “Documentation” means the online help files, use instructions, documentation, and related description of the applicable features and functionality of the Services, which may be updated by Swift from time to time.
   
   
   4. “Feedback” means any and all suggestions, ideas, enhancement requests, error identifications or other information related to the Services, Documentation, and other items provided hereunder and/or relating to Customer's use thereof.
   
   
   5. “Intellectual Property Rights” means all present and future worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how, and other trade secret rights, and all other proprietary rights.
   
   
   6. “Purpose” means use of the Services, solely as described in the Documentation.
   
   
   7. “User” means a Customer employee who uses the Services on Customer's behalf.


2. THE SKYLARK SERVICE.
   
   
   1. Subject to these Terms, Customer is hereby granted a limited, personal, non-exclusive, worldwide, non-sublicensable, non-transferable right to access and use the Services in connection with one or more Device, during the term of your subscription to the Services, solely for Customer's internal business purposes in connection with the Purpose. In connection with the Services, Swift may offer various subscription plans, including subscription offerings by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. Some subscription plans may have differing conditions and limitations, which will be disclosed at your sign-up or in other communications made available to you. At the end of each subscription billing cycle, your subscription plan(s) will automatically renew for subsequent billing cycles, until the subscription plan is cancelled or terminated pursuant to Section 4. For clarity, each subscription may be used with multiple Devices, though only one Device may access the Services at any one time. Swift reserves all rights not expressly granted hereunder. Swift may create and maintain administrative, support, system, and maintenance accounts within the Services, all with Customer Data access for Swift and its service providers and other personnel, in order to deliver the Services and perform all other activities set forth in or contemplated by these Terms. Customer acknowledges that in order to use the Services, (a) Customer must (i) independently have or must independently obtain Internet access, either directly or through devices that access Web-based content, as well as browser software that supports protocols used by Swift; and (ii) follow logon procedures for the services that support such protocols; and (b) Swift assumes no responsibility for the foregoing.


3. PAYMENT.
   
   
   1. Payment Methods. In order to us the Services, you must provide Swift with one or more Payment Methods. A “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party. You authorize us to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to us for payment of your subscription fee. You remain responsible for any uncollected amounts. You can update your Payment Methods by going to the "Account" page. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method(s).
   
   
   2. Billing Cycle. The subscription fee for the Services and any other charges you may incur in connection with your use of the Services, such as taxes and possible transaction fees, will be charged to your Payment Method on the specific payment date. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details. The length of your billing cycle will depend on the type of subscription that you choose when you sign up for the service. You can see your payment due date by looking on the “Subscriptions” page of the Services. Subscription fees are fully earned upon payment. In some cases your payment date may change, for example if your Payment Method has not successfully settled, when you change your subscription plan or if your paid subscription began on a day not contained in a given month. (Visit our website and click on the “Subscriptions” page to see your next payment date.) We may authorize your Payment Method in anticipation of subscription or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as you register. If you signed up for a subscription plan using an account with a third party as a Payment Method, you can find the billing information about your subscription plan(s) by visiting your account with the applicable third party. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the service until we have successfully charged a valid Payment Method. You remain responsible for any uncollected amounts.
   
   
   3. Trial Period. Swift may offer you a trial period to use and test certain offerings within the Services. The trial period starts on the day you opt in to such trial and will last for 30 days, unless otherwise agreed by Swift (the “Trial Period”). You may cancel the trial at any time until the last day of your Trial Period. If you do not wish to incur charges, you must cancel the trial by the end of the Trial Period. If you do not cancel the trial by the end of the Trial Period, the trial will be converted to a paid subscription plan, and you hereby authorized Swift to charge your Payment Method(s) for such subscription plan. You may, however, cancel such subscription plan at any time, in accordance with Section 4.1 below.
   
   
   4. Changes to Subscription Plans. Swift reserves the right to change the offered subscription plans or adjust pricing for the Services or any components thereof in any manner and at any time as Swift may determine in its sole and absolute discretion. Except as otherwise expressly provided for in these Terms of Use, Swift will provide you with advance notice of any price changes or changes to your subscription plan(s).
   
   
   5. No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used subscription periods. If you cancel the services pursuant to Section 4.1, you will continue to have access to the Services through the end of your current billing period. At any time, and for any reason, Swift may provide a refund, discount, or other consideration to some or all of its customers (“Credits”). The amount and form of such Credits, and the decision to provide them, are at Swift's sole and absolute discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate Swift to provide Credits in the future, under any circumstance.


4. CANCELLATION AND TERMINATION.
   
   
   1. Cancellation by Customer. Customer may cancel the Services or any subscription plan at any time. Upon Cancellation. To cancel, go to the “Subscriptions” page on our website and follow the instructions for cancellation. If you cancel your subscription, your subscription will automatically terminate at the end of your current billing period. If you signed up for the Services using an account with a third party as a Payment Method and wish to cancel the Services, you may need to do so through that third party, for example by visiting your account with the applicable third party and turning off auto-renew, or unsubscribing from the Services through such third party.
   
   
   2. Termination by Swift. Swift reserves the right to terminate your access to the Services at any time in its sole discretion if (a) you are in breach of these Terms; or (b) your use of the Services could cause a risk of harm or loss to Swift or our other users; or (c) Swift declines to renew your subscription plan(s). When reasonable and as permitted by law, Swift will provide you reasonable advance notice of its intent to terminate your access to the Services and an opportunity to correct any actions that led to its decision to terminate. Notwithstanding the foregoing, Swift may not provide advance notice if it determines that you are in material breach of these Terms, or if such notice would lead to civil or criminal liability for Swift, or if providing notice would compromise Swift's ability to provide the Services to our other customers. For the avoidance of doubt, Swift may still make a determination that it does not want to continue offering you access to the Service at any time for any or no reason.
   
   
   3. Access to Customer Data. You understand that if your account is suspended or terminated, you may no longer have access to the Customer Data that is stored with the Services. Upon (i) cancelation of the Services by you pursuant to Section 4.1, or (ii) upon termination of the Services by Swift pursuant to Section 4.2, you may request access to your Customer Data, which we will make available, except in cases where we have terminated your account due to your violation of these Terms. You must make such request within fourteen (14) days following such cancellation or termination. Otherwise, any Customer Data you have stored with the Services may not be retrievable and Swift will have no obligation to maintain Customer Data stored in your account after such fourteen (14) day period.


5. CUSTOMER RESPONSIBILITIES.
   
   
   1. Compliance with Laws. Customer will abide by all applicable laws, treaties and regulations regarding use of the Services.
   
   
   2. Provision of Customer Data; Responsibility for Customer Data Issues. Customer acknowledges that by transmitting Customer Data hereunder, Customer is making information available for use by Swift on an aggregated, anonymized basis. Accordingly, Customer grants Swift a nonexclusive, perpetual, irrevocable, transferable, sublicensable, fully paid-up, worldwide license to de-identify Customer Data and to use Customer Data on an aggregated, anonymized basis for Swift business purposes, including providing and improving Swift Technology and other Swift products and services. Customer is entirely responsible for obtaining all rights related to the Customer Data required by Swift to perform Swift's obligations and to exercise Swift's rights hereunder.
   
   
   3. Responsibility for Customer Data Issues. Swift is not obligated to screen Customer Data, although Swift reserves the right to screen Customer Data and to suspend access to Customer Data that Swift reasonably considers may breach these Terms or any applicable law. Swift will notify Customer as soon as practicable if Swift suspends access to any Customer Data and will restore access to such Customer Data as soon as, in Swift's reasonable opinion, doing so would not place Swift at risk of loss or damage. Swift is not liable for any damage or loss caused by Swift's decision to suspend access to Customer Data for any permissible reason under these Terms. Customer is entirely responsible for the content and delivery of Customer Data, including without limitation, the accuracy, usefulness, timeliness, completeness, appropriateness, quality, integrity, reliability, and legal sufficiency of Customer Data, and for obtaining all rights related to the Customer Data required by Swift to perform the Services and other obligations, and to exercise all rights, hereunder. Customer is responsible for ensuring Customer Data is correctly addressed and timely and does not represent a breach of any obligations to a third party or of law.
   
   
   4. Responsibility for Personal Data.
      
      
      1. General. Customer, on behalf of itself and all Users (whose prior written permission Customer represents and warrants that Customer has obtained) agrees to allow Swift and its Affiliates and their personnel to store and use Customer's and Users' contact information, including names, phone numbers, and e-mail addresses, in every jurisdiction in which the foregoing individuals reside and/or conduct business. Such information will be processed and used only in connection with the parties' business relationship described and contemplated hereunder, including the provision of the Services hereunder, and may be provided to Swift and its Affiliates and its and their personnel, contractors, business partners, and assignees for uses consistent with their collective business activities, including communicating with Customer (for example, for processing orders).
      
      
      2. Swift's Responsibilities. Customer represents that (i) Customer is duly authorized to provide personal data to Swift and Customer does so lawfully in compliance with relevant legislation, (ii) Swift and any entity within the Swift group of companies (each, a “Swift Entity”) or its subcontractors can process such data and (iii) Swift may disclose such data to any Swift Entity and its subcontractors for the purpose of satisfying its obligations to Customer and may transfer such data to countries outside of the country of origin. To the extent Personal Data, as defined in the DPA, from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by Swift, the Standard Contractual Clauses shall apply. For the purposes of the Standard Contractual Clauses, Customer is the data exporter, and Customer's acceptance of these Terms shall be treated as its execution of the Standard Contractual Clauses and Appendices.
      
      
      3. Customer's Responsibilities. Without prejudice to clauses (a) and (b) above, Customer is responsible for: (i) any required notices, consents, and/or authorizations related to Customer's (or any User's) provision of, and Swift's processing of, Customer Data (including any personal data) as part of the Services; (ii) any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer Data, including any viruses, Trojan horses, worms, or other harmful programming routines contained in Customer Data, and (iii) any use by Customer or any User(s) of the Services in a manner that is inconsistent with the terms of this agreement. To the extent that Customer (or any User) disclose(s) Customer Data to a third party that is not subject to any restriction on the disclosure of the Customer Data, Swift is no longer responsible for the security, integrity, or confidentiality of such Customer Data.
      
      
      4. Data Restrictions. Customer Agrees that Customer Data will not include any sensitive or special data that imposes specific data security or data protection obligations on Swift in addition to or different from those described herein.


6. INTELLECTUAL PROPERTY OWNERSHIP.
   
   
   1. Customer Ownership. As between Swift and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data. This includes any data, or other information that is logged, input, or uploaded by Customer or a User during Customer's (or such User's) use of the Services for the Purpose.
   
   
   2. Swift Ownership. As between Swift and Customer, Swift (or its licensors and suppliers) owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Services, the Documentation, and all technologies related thereto. No jointly owned intellectual property is created under or in connection with these Terms. Customer acknowledges that the Swift name, the Swift logo, and the product names associated with the Services are trademarks of Swift or third parties, and no license to such marks is granted herein.
   
   
   3. Feedback. If Customer provides Swift with Feedback, Swift owns and will continue to own such Feedback, exclusively. Customer hereby assigns to Swift all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and agrees to assist Swift in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback. If such assignment is deemed unenforceable for any reason, then Customer waives any and all rights as to Feedback, and hereby grants Swift an unlimited, perpetual, irrevocable, sublicensable, transferable, fully paid up and royalty-free license to use and exploit Feedback in any manner that Swift deems appropriate, in Swift's sole discretion. Without limiting the generality of the foregoing, Customer acknowledges and agrees that providing Feedback is entirely optional, and Customer's rights under these Terms will not be affected if Customer should choose to not provide Feedback.
   
   
   4. Third Party Code. The products and/or services provided hereunder may incorporate or be provided with third party software, including open source software (collectively, “Third Party Code”), as detailed on Swift's  website. Such Third Party Code is provided under and subject to the terms and conditions of the Third Party Code licensors and/or suppliers. Swift will use commercially reasonable efforts to update the web page identified above, so that such information remains current; however, Customer acknowledges and agrees that if the applicable Third Party Code licensor or supplier does not notify Swift of updated terms, the Swift website may not be up-to-date at all times, and Swift will not be responsible in such event. In the event of a conflict between the licenses granted to Customer under these Terms and the licenses applicable to the Third Party Code, the latter will be controlling. For clarity, Third Party Code is not subject to the warranty or indemnity protections set forth herein; however, the warranty disclaimers and limitation of liability provisions set forth in these Terms will apply.


7. DISCLAIMER OF WARRANTIES.
   ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, QUALITY, ACCURACY, OR QUIET ENJOYMENT, ARE DISCLAIMED BY SWIFT, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS. SWIFT'S SERVICES MAY BE SUBJECT TO, AND SWIFT IS NOT RESPONSIBLE FOR, LIMITATIONS, RISKS, AND OTHER PROBLEMS INHERENT IN ELECTRONIC COMMUNICATIONS, AND SWIFT DOES NOT WARRANT THAT USE OF THE SERVICES IS RISK-FREE. SWIFT DOES NOT PROVIDE REPRESENTATIONS, WARRANTIES, OR ASSURANCES AGAINST INTERCEPTION OF ACCESS, AND SUBJECT TO SECTION 3.2, SWIFT IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACTS RESULTING IN LOSS OF OR DAMAGE TO CUSTOMER DATA OR OTHER PROPERTY IN CONNECTION WITH CUSTOMER'S USE OF THE SERVICES. THE SERVICESAND OTHER MATERIALS PROVIDED BY SWIFT HEREUNDER ARE NOT DESIGNED, INTENDED, OR CERTIFIED FOR USE IN CONNECTION WITH THE OPERATION OF WEAPONS, WEAPONS SYSTEMS, NUCLEAR INSTALLATIONS, MEANS OF MASS TRANSPORTATION OR AVIATION, MEDICAL SYSTEMS, DEVICES, IMPLANTS, OR EQUIPMENT, POLLUTION CONTROL, HAZARDOUS SYSTEMS MANAGEMENT, OR FOR ANY OTHER DANGEROUS APPLICATION, OR ANY APPLICATION IN WHICH THE FAILURE OF THE SWIFT-PROVIDED ITEMS COULD CREATE A SITUATION WHERE BODILY INJURY, PROPERTY DAMAGE, AND/OR DEATH MAY OCCUR. SWIFT DISCLAIMS COMPLIANCE BY ALL PRODUCTS AND SERVICES PROVIDED HEREUNDER WITH ANSI, ISO, OSHA, JISHA, EU-OSHA, AND/OR OTHER SAFETY STANDARDS. IF ANY PRODUCTS INCLUDE SAFETY AND/OR COLLISION DETECTION TECHNOLOGY, CUSTOMER WILL NOT DISABLE SUCH TECHNOLOGY, AND WILL NOT AUTHORIZE ANY THIRD PARTY TO DO SO, NOR WILL CUSTOMER CREATE OR APPLY (OR HAVE CREATED OR APPLIED) ANY MECHANISM WHICH MAY MAKE THE PRODUCTS UNSAFE OR HARMFUL. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DAMAGE AND/OR HARM CAUSED BY THE PRODUCTS PROVIDED HEREUNDER AND WILL INDEMNIFY AND HOLD SWIFT HARMLESS FROM ALL LIABILITY RELATING TO SUCH DAMAGE OR HARM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER AGREES TO COMPLY WITH ALL SAFETY GUIDELINES PROMULGATED BY SWIFT OR A THIRD PARTY HARDWARE MANUFACTURER AND/OR UNDER APPLICABLE LAW AND/OR GOVERNMENT AGENCY (SUCH AS ANSI, ISO, OSHA, JISHA, EU-OSHA AND/OR OTHER AGENCY WITH OVERSIGHT OVER OR AN INTEREST IN SYSTEM SAFETY). USE IN VIOLATION OF THE FOREGOING RESTRICTIONS IS SOLELY AT CUSTOMER'S RISK, AND NEITHER SWIFT (NOR SWIFT'S SUPPLIERS OR LICENSORS) WILL HAVE LIABILITY HEREUNDER WITH RESPECT THERETO.


8. LIMITATION OF LIABILITY.
   THE FOLLOWING PROVISIONS APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. IN NO EVENT WILL SWIFT OR ITS AFFILIATES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND/OR LICENSORS OR SUPPLIERS (COLLECTIVELY, THE “SWIFT PARTIES”) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ARISING FROM OR RELATING TO THESE TERMS, EVEN IF THE FOREGOING PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SWIFT PARTIES' TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS AND THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES (EXCLUDING SUPPORT FEES, AND ANY PROFESSIONAL FEES) PAID TO SWIFT BY (OR THROUGH) CUSTOMER UNDER THESE TERMS IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM FOR WHICH MONEY DAMAGES ARE SOUGHT, WITH ALL CLIAMS BEING AGGREGATED IN SATISFACTION OF THE LIMIT. CUSTOMER ACKNOWLEDGES THAT THE FEES SET FORTH IN THESE TERMS REFLECT THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND THAT SWIFT WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT SWIFT'S LICENSORS AND SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THESE TERMS, AND THAT TO THE EXTENT CUSTOMER MAY OTHERWISE HAVE A CLAIM AGAINST ANY OF THE SWIFT PARTIES (OTHER THAN SWIFT ITSELF), CUSTOMER WILL INITIATE SUCH CLAIM AGAINST SWIFT, AND NOT THE OTHER SWIFT PARTY(IES). CUSTOMER ALSO AGREES THAT CUSTOMER WILL BE FULLY RESPONSIBLE AND LIABLE FOR ITS OWN ACTS AND OMISSIONS, AS WELL AS THE ACTS AND OMISSIONS OF ITS USERS. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY AND FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS.


9. INDEMNIFICATION.
   Customer agrees to defend, indemnify and hold harmless Swift and its officers, directors, employees, agents, suppliers, and licensors from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) brought by third parties (including any User) resulting from or relating to: (a) any breach by Customer of its obligations, duties, or responsibilities under these Terms; (b) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Customer relating to the Services; or (c) any claims against Swift made by Users. Customer's obligations under this Section [9] are subject to the conditions that Swift give Customer prompt written notice of any such claim, allow Customer to control the defense and settlement of the claim (except that Customer may no offer any defense or agree to any settlement that does not unconditionally release the indemnified party(ies) or that imposes any obligation or liability on the indemnified party(ies), without the indemnified party's(ies') prior written consent), and cooperate with Customer, at Customer's reasonable request and expense, in defending or settling the claim.


10. GENERAL.
    
    
    1. Effect of Termination; Survival. Upon expiration or termination of these Terms, Sections 1 and Sections 3 through 10 will survive.
    
    
    2. Assignment. Customer may not assign these Terms, by operation of law or otherwise, without Swift's prior written approval. Any attempted assignment in violation of the foregoing will be null and void.
    
    
    3. Governing Law; Venue. These Terms will be governed by the laws of the State of California without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Any action or proceeding arising from or relating to these Terms must be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THESE TERMS.
    
    
    4. Remedies. The parties' rights and remedies hereunder are cumulative. Customer acknowledges that the Services contain Swift's valuable trade secrets and proprietary information, that any breach of these Terms relating thereto will constitute harm to Swift for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.
    
    
    5. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
    
    
    6. Construction. Headings are for reference purposes only. As used in these Terms, the word “including” means “including but not limited to.” Unless the context otherwise requires, words in the singular will include the plural and, in the plural, will include the singular. A reference to a statute or statutory provision will include all subordinate legislation made as at the date of these Terms under that statute or statutory provision. Unless the context otherwise requires, a reference to one gender will include a reference to the other genders.
    
    
    7. Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of these Terms or use of the Swift Technology. Except for Swift's suppliers and licensors, there are no third-party beneficiaries under these Terms.
    
    
    8. U.S. Government End Users. If Customer is a branch agency of the United States Government, the following applies. Swift provides the Services, and related technology, in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFARS 252.227-7015 (Technical Data – Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for additional or different rights not conveyed under these terms, it must negotiate with Swift acceptable terms for such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. Swift disclaims any and all supply representations and government flow-downs through Customer, and moreover, Swift does not accept any government flow-down provisions. Further, Swift will not provide any government-required representations or certifications to Customer or any User.
    
    
    9. Waiver; Severability. Failure to enforce any provision in these Terms will not constitute a waiver unless in writing. No modification hereof will be effective unless in a mutually executed writing. If any provision of these Terms is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect. However, Section 8 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 7 (Disclaimer of Warranties).
    
    
    10. Publicity. Swift will have the right to publicize the parties' relationship, by listing Customer as a Swift licensee and/or embedded Customer, or the like. Customer hereby grants to Swift, during the term of these Terms, a nonexclusive, royalty-free and fully-paid, worldwide license to use Customer's name, logo, and other marks as is reasonably necessary for Swift to exercise its rights as set forth above. Swift agrees to comply with any commercially reasonable trademark usage guidelines provided to Swift in writing.
    
    
    11. Entire Terms. These Terms form the entire agreement between Customer and Swift, and supersede all prior or contemporaneous negotiations or agreements between the parties regarding the subject matter hereof.