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Table Of Content
 * Membership Terms
 * Shop Terms
 * Shipping Policies
 * Refund Policies
 * Payments
 * Storage


TERMS OF USE


Last Updated: February 21, 2024

The Site and Services (each as defined below) are provided to you (“you”, "your"
or “Customer”) by SwagUp, Inc. and its subsidiaries (referred herein as "we",
"us", "our" and "SwagUp"). These Terms of Use (“Terms”) govern your use of the
SwagUp website located at www.swagup.com, our platform, redeem pages, SwagUp
Shops or any apps or websites accessible therefrom (collectively, the “Site”)
and the services provided by SwagUp, or any use thereof (the “Services”). In
addition to these Terms, the Site and Services may be governed by additional
agreements, or such other terms as may be issued by SwagUp from time to time.
These additional terms shall be in addition to, and not in lieu of, these Terms
except as set forth herein.

Please review these Terms carefully. Upon either an agreed upon Purchase Order
(as defined below) (a Purchase Order together with these Terms is an
“Agreement”) or by accessing, browsing, or otherwise using the Site or any other
aspect of the Services, these Terms are effective and you acknowledge that you
have read, understood, and agree to be bound by these Terms. The Terms along
with any Purchase Order constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior
communications and agreements.

We reserve the right, at our sole direction, to change or modify portions or
revise the Terms at any time without notice. You should periodically visit these
Terms to review the current terms that apply to your use of the Site or
Services. Any use of the Site or Services by you after our publication of such
revised Terms shall constitute your acceptance of these Terms as modified. If we
do this, we will post the changes on this page and will indicate at the top of
this page the date these Terms were last revised. We may also notify you of any
material changes either through a pop-up notice, e-mail or through other
reasonable means. Your continued use of the Site or Services after any such
changes constitutes your acceptance of the new Terms. If you do not agree to
abide by this or any future Terms, do not use or access (or continue to use or
access) the Site or the Services.

BY USING THE SITE OR SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER
INTO THESE TERMS. IF YOU ARE USING THE SITE OR SERVICES ON BEHALF OF A COMPANY
OR OTHER ORGANIZATION, THEN YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF
YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT THAT YOU HAVE THE LEGAL
AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS.


1. SERVICES & ACCESS

1.1. Description of Services. SwagUp provides curated, customer branded swag
products and services, including design, inventory management, distribution,
warehousing and fulfillment services.

1.2. Permitted Use. We hereby grant you limited permission to use the Site and
the Services, so long as we provide you with access. For the avoidance of doubt,
we are not giving you any rights or license with respect to any aspect of the
Site or the Services, all rights being held by us. You expressly acknowledge and
agree that we reserve the right to refuse service, suspend or terminate your
account, block your use of the Site and/or cancel your order(s) at our sole
discretion, including, without limitation, if we believe or suspect that you
violate any applicable law or any of these Terms.

1.3. Usage Restrictions. You may not: (a) make the Site or Service available to,
or use the Site or Service for the benefit of, anyone other than you and any
authorized users; (b) use the Site to transmit or attempt to transmit
advertisements without our prior written authorization; (c) publish, upload,
post, transmit, or otherwise make available to the Site any content that (i) is
unlawful or tortious, harassing, libelous or defamatory, obscene, threatening,
harmful of minors in any way, abusive, or contain expressions of hatred,
bigotry, racism or pornography, or are otherwise objectionable, or that would
constitute or encourage a criminal offense, or (ii) you do not have a right to
make available under any applicable law or under contractual or fiduciary
relationships, or that knowingly infringes, misappropriates, or otherwise
violates any intellectual property, privacy, publicity, or other proprietary
rights of any person or entity; (d) sublicense, resell, time share, or similarly
exploit the Site or Services; (e) upload, post, transmit, or otherwise make
available any content or information knowingly designed to interrupt, interfere
with, destroy or limit the functionality of any computer software or hardware or
telecommunications equipment; (f) copy, reverse engineer, modify, adapt, or hack
the Site or Services, or otherwise attempt to gain unauthorized access to the
Site or Services or its related systems or networks; or (g) access the Site to
build a competitive product or service ((a) through (g) herein, collectively,
the “Restrictions”). You shall not act in a manner that negatively affects other
users’ ability to interact with the Site or the Services.

1.4. Account, Password and Security. You are responsible for maintaining the
confidentiality of your password and account details, if any, and are fully
responsible for any and all activities that occur under your password or
account. You agree to (a) immediately notify SwagUp of any unauthorized use of
your password or account or any other breach of security, and (b) ensure that
you exit from your account at the end of each session when accessing the Site or
Services. SwagUp will not be liable for any loss or damage arising from your
failure to comply with this section.


2. PRODUCTS

2.1. Products. The Site and Services may make available listings, descriptions
and images of goods (collectively, "Products"). Such Products may be made
available by SwagUp or by third parties. The availability through the Site of
any listing, description or image of any Product does not imply an endorsement
of such Product or an affiliation with the manufacturer or provider of such
Product. Any such reference does not imply or warrant that any such products or
services shall be available at any time. We make no representations as to the
completeness, accuracy or timeliness of such listings, descriptions or images
(including any features, specifications and prices contained therein). Such
information and the availability of any Product is subject to change at any time
without notice. Certain weights, measures and similar descriptions are
approximate and are for convenience only. It is your responsibility to ascertain
and obey all applicable local, state, federal and foreign laws (including
minimum age requirements) regarding the possession, use and sale of any Product.

2.2. Availability. The availability and pricing of Products identified on our
Site or a Purchase Order is subject to change. The Site and Services may contain
references to products and services that may no longer be available. In the
event a Purchase Order has been agreed upon or Fees have been paid by you and
the Product is unavailable, SwagUp will provide you notice of the unavailable
Product and provide suggestions for a suitable replacement.

2.3. Restrictions. SwagUp reserves the right, including without prior notice to
you, to limit the available quantity of or discontinue making available any
Product; to impose conditions on the honoring of any coupon, discount, credit or
similar promotion; to bar any user from completing an order; to cancel any order
even after it has been placed on line through the Site and to refuse to provide
any user with any Product, subject to any applicable laws.

2.4. Use of Products. You represent that the applicable Products will be used
only in a lawful manner in accordance with any instructions provided. You agree
that you will not resell any products or services obtained through SwagUp,
unless we have provided our express prior written consent for you to do so. You
agree to take full responsibility for the selection and use of any Products you
purchase on behalf of yourself or others including the determination of whether
such Products are appropriate for the recipient, and except as provided herein,
SwagUp shall not be liable to you or the recipient for any damages in connection
with the use of any Products.

2.5. Title. Title passes to you upon the Purchase of Products. You agree that at
no time during the period that Products are held by SwagUp will SwagUp hold
title, or any other rights of ownership in the Products.

2.6. Defective and Damaged Products. All claims for Products that are
non-conforming, defective or damaged must be made in accordance with our
Shipping and Return/Refund Policies located at the bottom of these Terms.


3. PURCHASE ORDERS

3.1. You may request that SwagUp supply Products and Services pursuant to the
terms of a mutually agreed upon purchase order, order form, invoice or checkout
page (a "Purchase Order"). We shall have no obligation to accept a Purchase
Order.

3.2. Each agreed upon Purchase Order shall identify the specific Products and
Services to be delivered by us, and the quantities and pricing for the same.

3.3. A Purchase Order shall not be effective until it is accepted by us. The
parties may agree to terms in a Purchase Order which vary from or would be
inconsistent with the provisions of these Terms, in which case any conflict
between the terms of these Terms and the Purchase Order, the Purchase Order
terms will prevail. 


4. PAYMENTS

4.1. Pricing. All prices are subject to change from time to time, and your
purchase will be based on prices in effect at the time of an agreed upon
Purchase Order. All prices are exclusive of sales and other applicable taxes,
shipping and handling and freight charges, all of which will be your
responsibility and may be set forth in any Purchase Order as separate line
items, unless otherwise specified. When you place an order on the Site, we will
provide an estimated total price which will include estimated sales and other
applicable taxes, shipping and other applicable fees. However, you acknowledge
and agree that the final purchase price will be as stated on a Purchase Order as
set forth in Section 4.2. 

4.2. Fees. You will pay all fees specified in any Purchase Order (the “Fees”).
Payment obligations are non-cancelable and, except as expressly set forth
herein, Fees paid are non-refundable and payable in United States dollars
(subject to the refund and/or credit rights set forth herein). Except as set
forth in any Purchase Order, due to the customized nature of the Products, Fees
are due upfront in advance of any production.

4.3. Late Payment. If any Fees owed by you (excluding amounts disputed in
reasonable and good faith) have not been paid by the applicable due date (within
30 days of receipt of an agreed upon Purchase Order unless otherwise agreed in
writing by the parties), we reserve the right to cancel any order or apply a
finance charge of 1.5% per month on any outstanding balance, or the maximum
permitted by law, whichever is lower, and be reimbursed for all expenses of
collection.

4.4. Modification of Any Purchase Order. If you choose to modify your Purchase
Order or any Product is unavailable or has changed in price, any incremental
cost increase or decrease shall be reflected in an updated Purchase Order. Any
incremental increase in Fees shall be payable by you in accordance with these
Terms. Any refund owed to you shall be payable in accordance with these Terms.

4.5. Taxes. You will be solely responsible for, all applicable taxes in
connection with these Terms and any Purchase Order, including any sales, use,
excise, value-added, goods and services, consumption, and other similar taxes or
duties (but excluding taxes based on SwagUp’s net income) unless otherwise
specified in writing. Should any payment for the Products and Services provided
by SwagUp be subject to withholding tax by any taxing authority, you will
reimburse SwagUp for such withholding tax. In the event you are tax-exempt, you
shall provide a valid tax exemption certificate to SwagUp. If you would like
more information on taxes, please refer to our Site Here.

4.6. Credits. SwagUp allows you to load a dollar value onto your account in
return for credits for use on its Site for its Services (“Credits”). The dollar
value that you load onto your account may be a prepayment for the Products and
Services provided by SwagUp except as otherwise set forth in the Membership
Terms and Shop Terms. We offer the Credits to make it easier for you to use our
Site and Services. Unless otherwise required by law or permitted by these Terms,
Credits are nonrefundable and may not be redeemed for cash. The value of your
credits are not insured by SwagUp or by the Federal Deposit Insurance
Corporation (FDIC), nor do Credits earn interest.


5. INTELLECTUAL PROPERTY

5.1. Ownership. SwagUp shall retain all intellectual property rights in the Site
and the Services, including any and all derivatives, changes and improvements
thereof, and Customer agrees that it obtains no intellectual property rights or
licenses by these Terms except those expressly granted herein. Except for User
Content (as defined below), all content and material made available on the Site,
(collectively “Site Content“), including, without limitation, catalogs, product
photos and images, graphics, designs, artwork, text, written/editorial material,
audios, videos, animations, databases, layouts, user interfaces, software
programs (including their source code and object code), and social media
applications and plug-ins, belong exclusively to us and/or our licensors and
partners, and are protected by U.S. and international copyright and trademark
laws. Any use or copying of the Site or Site Content, without written permission
from SwagUp, is strictly prohibited. Customer hereby grants SwagUp a non
exclusive, perpetual, irrevocable, royalty-free license to any ideas,
suggestions, feedback, product ideas or categories, or service improvements
given by Customer pertaining to the Site or the Service.

5.2. User Content. As used herein, “User Content” means any marks, artwork,
logos, design, data, files, specifications visual, graphic, pictorial,
photographic, written, or other material furnished to us by you. You retain
ownership of all User Content furnished by you, but subject to your license
grant to us as set forth herein. By furnishing User Content to us, (i) you grant
to us a worldwide, non-exclusive, royalty-free, license (with the right to
sublicense to our suppliers, designers and our fulfillment partners) to use,
copy, reproduce, distribute, prepare derivative works of, display and perform,
to the extent required to perform the Services, make custom products and fulfill
order(s); (ii) you represent and warrant that you own and control all rights in
and to such User Content and have the legal right and authority to grant the
aforementioned license to us; and (iii) you agree to defend, indemnify and hold
us and our officers, directors, employees, agents, suppliers, , vendors, and
fulfillment partners harmless pursuant to Section 13.1 below, in the event any
User Content furnished by you infringes upon, violates or misappropriates any
property, personal or proprietary right of any person or entity.

5.3. Copyright Complaints. We are under no obligation to, and do not, scan
content used in connection with the Site or Services for the inclusion of
illegal or impermissible content. However, we respect the copyright and
intellectual property interests of others. It is our policy not to permit
materials known by us to infringe another party’s copyright to remain on the
Site.

 * 5.3.1. If you believe that an infringement of intellectual property rights
   exists, please provide us with notice of the same to legal@swagup.com
 * 5.3.2. If you believe there is or has been a copyright infringement, you
   should provide us with written notice that contains the following information
   required by the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512
 * 5.3.3. A physical or electronic signature of a person authorized to act on
   behalf of the owner of an exclusive right that is allegedly infringed;
 * 5.3.4. Identification of the copyrighted work claimed to have been infringed,
   or, if multiple copyrighted works are covered by a single notification, a
   representative list of such works;
 * 5.3.5. Identification of the material that is claimed to be infringing or to
   be the subject of infringing activity and that is to be removed or access to
   which is to be disabled and information reasonably sufficient to permit us to
   locate the material;
 * 5.3.6. Information reasonably sufficient to permit us to contact the
   complaining party, such as an address, telephone number and, if available, an
   email address at which the complaining party may be contacted;
 * 5.3.7. A statement that the complaining party has a good faith belief that
   use of the material in the manner complained of is not authorized by the
   copyright owner, its agent or the law;
 * 5.3.8. A statement that the information in the notification is accurate and,
   under penalty of perjury, that the complaining party is authorized to act on
   behalf of the owner of an exclusive right that is allegedly infringed


6. STORAGE

6.1. Storage. Upon payment of all additional charges, as part of our Services,
Customer may store its Products or 3rd party products at facilities operated by
SwagUp or a 3rd party logistics company (“Inventory”), subject to these Terms,
SwagUp’s Shipping Policy (located at the bottom of this page) and its
Return/Refund  Policy (located at the bottom of this page). You will be charged
every six (6) months or as otherwise determined by SwagUp for SwagUp to store
your Inventory. Storage pricing will be billed at our then-current rates or as
otherwise agreed in writing. Our obligations regarding products held in
Inventory will be limited to a duty to exercise reasonable care in handling and
storage of such products. You agree that SwagUp may ship products held in
Inventory to you or your designee upon your request and at your expense. In the
event that you request shipment of products held in Inventory and subsequently
cancel a portion or all of such request, you will be liable for any and all
applicable cancellation, restocking, and similar charges imposed by SwagUp or
its suppliers. We hold such items on behalf of Customer and you hereby agree
that at no time during the period that your products are held in Inventory will
SwagUp or any other third party hold title, or any other rights of ownership in
the Inventory. Title in Inventory will continue to be held by You.

6.2. Inactive Inventory. Upon notice to you, we may require you to take physical
possession of Inactive Inventory within thirty (30) days notice, unless
otherwise mutually agreed by the parties in writing. “Inactive Inventory” is
defined as those Products or 3rd party products that we hold in Inventory for
you that we received 6 months or more prior and you are not continuing the
payment of storage fees. In the event that SwagUp requires you to take physical
possession of your products held in Inventory, we will require you to provide an
address for delivery and pay any additional fees including shipping. If no
address is provided by you, SwagUp reserves the right to destroy, donate or
discard of, any Inactive Inventory that remains unclaimed after such period.


7. SHIPPING

7.1 Shipping Fees and Terms. Shipping pricing will be charged at SwagUp’s
then-current rates for domestic and international shipping which can be found
Here. You agree to pay all charges incurred by you or on your behalf through the
Site at the prices in effect when such charges are incurred. In accordance with
our Shipping Policy (located at the bottom of this page) and our Return/Refund
Policy (located at the bottom of this page). Any delivery date(s) are
approximate and are subject to a variety of factors including but not limited to
carrier operations, weather, strikes and acts of god. We are not liable for any
loss or expense, whether by contract or tort, incurred by you resulting from
failure to meet the estimated delivery date. All other shipping information is
set forth in our Shipping Policy linked below.


8. MEMBERSHIPS, SHOPS & LOYALTY PROGRAM

8.1. Membership Terms. By selecting a membership tier with SwagUp and paying the
Membership Fee, you become a “Member” with access to certain benefits, features,
discounts and services through the Site and Services (a “Membership”).  Terms
and conditions in connection with our Memberships and SwagUp’s loyalty program
can be found in our Membership Terms (the “Membership Terms”). Additionally,
terms and conditions for SwagUp’s native shops can be found Here (“Shop Terms”).


9. WARRANTIES

9.1. Customer Warranties. Customer represents and warrants that (a) the User
Content does not infringe upon any third party’s proprietary rights, including
intellectual property rights (b) Customer will use the Site and Service in
compliance with all applicable laws and regulations, including laws applicable
to the jurisdictions in which they send items, and any corporate policies to
which its recipients are subject.

9.2. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE
USAGE OF THE SITE AND SERVICES, AND ALL PRODUCTS ARE SOLD “AS IS,” WITHOUT
WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF
MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY
LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. WE
NEITHER MAKE NOR ASSUME, AND DO NOT AUTHORIZE ANY OTHER PERSON TO MAKE OR
ASSUME, ANY OBLIGATION, LIABILITY OR WARRANTY IN CONNECTION WITH ANY PRODUCTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SWAGUP DOES NOT WARRANT THAT
THE SITE, SERVICE OR ANY SERVICES RELATED THERETO (A) WILL BE DELIVERED OR
PERFORMED WITHOUT MISTAKE OR INTERRUPTION, (B) THAT CUSTOMER WILL ACHIEVE ANY
PARTICULAR BUSINESS RESULTS BY USE OF THE SITE, SERVICE OR PRODUCTS OR (C) THE
SITE, OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR- FREE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THE
FOREGOING DISCLAIMER OF WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED
BY LAW IN ANY APPLICABLE JURISDICTION. ACCORDINGLY, SOME OF THE ABOVE
DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT
TO YOU. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID, INVALIDITY OF SUCH
PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE
SECTION.


10. CONFIDENTIALITY

10.1. Non-Disclosure. Each party (each a “Receiving Party”) agrees that it shall
use and reproduce the Confidential Information of the other party (the
“Disclosing Party”) only for purposes of exercising its rights and performing
its obligations under these Terms and only to the extent necessary for such
purposes and shall restrict disclosure of such Confidential Information to the
Receiving Party’s employees, contractors, subcontractors, agents, fulfillment
partners, suppliers, consultants, or advisors who have a need to know and who
are bound by obligations of confidentiality and non-use at least as protective
of such information as these Terms and shall not disclose such Confidential
Information to any third party without the prior written approval of the
Disclosing Party except as set forth herein. The foregoing obligations shall be
satisfied by the Receiving Party through the exercise of at least the same
degree of care used to restrict disclosure and use of its own information of
like importance, but not less than reasonable care. Notwithstanding the
foregoing, it shall not be a breach of these Terms for the Receiving Party to
disclose Confidential Information if compelled to do so under law, in a judicial
or other governmental investigation or proceeding, provided that, to the extent
permitted by law, the Receiving Party has given the Disclosing Party prior
notice and reasonable assistance to permit the Disclosing Party a reasonable
opportunity to object to and/or limit the judicial or governmental requirement
to disclosure. “Confidential Information” means all information of a party
disclosed to the other party, regardless of the form of disclosure, that is
designated as confidential or that reasonably should be understood to be
confidential given the nature of the information and the circumstances of
disclosure.

10.2. Exceptions. Notwithstanding anything to the contrary herein, neither party
shall be liable for using or disclosing information that such party can prove:
(i) was publicly known at the time it was disclosed or has become publicly known
through no fault of the Receiving Party; (ii) was known to the Receiving Party,
without restriction, at the time of disclosure, as demonstrated by files in
existence at the time of disclosure; (iii) is disclosed with the prior written
approval of the Disclosing Party; (iv) was independently developed by the
Receiving Party without any use of the Confidential Information, as demonstrated
by files created at the time of such independent development; (v) becomes known
to the Receiving Party, without restriction, from a source other than the
Disclosing Party without breach of these Terms by the Receiving Party and
otherwise not in violation of the Disclosing Party’s rights; or (vi) is
disclosed generally to third parties by the Disclosing Party without
restrictions similar to those contained in these Terms.


11. THIRD PARTY SITES

11.1. Third Party Sites. The Site or Services may provide links to third party
websites or resources (“Third Party Sites”). Because we have no control over
Third Party Sites and resources, you acknowledge and agree that we are not
responsible for the truthfulness, accuracy, quality or completeness of the
content, services, links displayed and/or any other activities conducted on or
through such Third Party Sites, and do not endorse and are not responsible or
liable for any content, advertising, goods, services or other materials on,
available through or provided by such Third Party Sites. You agree that we shall
not be responsible or liable for any loss or damage of any sort incurred as the
result of any interaction you may have with such Third Party Sites. We may
enable social media connectivity on the Site from time to time. This
connectivity may link to our own social media accounts. Those social media
websites are also Third Party Sites. You acknowledge and agree that the Third
Party Sites may have different privacy policies and terms and conditions and/or
user guides and business practices than us, and you further acknowledge and
agree that your use of such Third Party Sites is governed by the respective
Third Party Site terms and conditions and any other applicable policies. Third
Party Sites may also be able to use information about action you take on our
Site. However, note that where you choose to publish or share information
through the social media links or on our Site, we have no control over that
activity. It will not be protected by us. YOU AGREE THAT SWAGUP WILL NOT, UNDER
ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY
GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH
ANY THIRD PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY
HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED
BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS
PRACTICES OF ANY THIRD PARTY.


12. LIMITATION OF LIABILITY

12.1. Exclusion of Damages. IN NO EVENT WILL SWAGUP BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING
LOST PROFITS, LOSS OF SALE, LOSS OF DATA OR INFORMATION OF ANY KIND, LOSS OF
OPPORTUNITY, LOSS OF USE, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE
PRODUCTS OR SERVICES, OR OTHER INTANGIBLE LOSSES, HOWEVER CAUSED, AND ON ANY
THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE
AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SWAGUP HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES RELATED TO (A) THE PRODUCTS OR THE USE OR THE
INABILITY TO USE THE SITE OR SERVICES; (B) THE DELETION OF, CORRUPTION OF, OR
FAILURE TO STORE, ANY USER CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR
TRANSMITTED BY OR THROUGH THE USE OF THE SITE OR SERVICES; (C) STATEMENTS OR
CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICE; AND (D) ANY DAMAGE TO
INVENTORY HELD BY SWAGUP ON BEHALF OF CUSTOMER (EXCEPT AS OTHERWISE STATED
HEREIN).

12.2. MAXIMUM AGGREGATE LIABILITY. SWAGUP’S MAXIMUM AGGREGATE LIABILITY UNDER,
ARISING OUT OF OR RELATING TO THE TERMS OR THE SITE OR SERVICES SHALL NOT EXCEED
THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SWAGUP DURING THE SIX (6) MONTHS
PRECEDING THE DATE THE LIABILITY FIRST ARISES, OR, IF GREATER, ONE HUNDRED
DOLLARS ($100).

THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT
PERMITTED BY LAW IN ANY APPLICABLE JURISDICTION. ACCORDINGLY, SOME OF THE ABOVE
LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT
TO YOU. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID, INVALIDITY OF SUCH
PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE
SECTION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICE OR WITH
THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE OR
SERVICE.


13. INDEMNITY

13.1. Customer Indemnities. By using the Site and Services, you agree to defend,
indemnify and hold us and our officers, directors, consultants, employees,
agents, suppliers, and fulfillment partners, successors and permitted assigns,
harmless from and against any third party claims, demands, suits, actions,
proceedings, judgments, orders, damages, liabilities, penalties, losses, costs
and expenses (including, without limitation, attorney fees and court costs)
(collectively “claims“) arising from or in connection with: (i) your misuse of
the Site or Services; (ii) any User Content furnished by you; (iii) your misuse,
resale or further distribution of any Products you purchase from us, or your use
of the Products in any manner not contemplated by these Terms; (iii) your breach
or violation of any of these Terms, Membership Terms, Shop Terms and any
applicable law, rules, regulations or governmental order; or (iv) any harm
including but not limited to injury, damage to property, sickness, disease or
death, suffered or alleged to be suffered by any third party caused by or in
connection with products sent by SwagUp, other than as a result of any gross
negligence, fraud, malicious, or reckless conduct on the part of SwagUp. For the
sake of clarity, nothing in these Terms is intended to limit liability on the
part of SwagUp for any gross negligence, fraud, malicious, or reckless conduct
on the part of SwagUp.

13.2. SwagUp Indemnities. SwagUp shall defend, indemnify and hold harmless
Customer and its officers, directors, consultants, employees, successors and
permitted assigns, from and against any claim arising out of or relating to an
allegation that the Products or Services infringes any intellectual property
right of a third party.


14. PUBLICITY

14.1 Publicity. Customer hereby approves the display by SwagUp of Customer’s
name and logo on its website and in marketing materials, subject to Customer’s
right to revoke such approval upon written notice to SwagUp.


15. GOVERNING LAW AND DISPUTE SETTLEMENT; ARBITRATION CLAUSE AND CLASS ACTION
WAIVER—IMPORTANT—PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS

15.1. Arbitration. Any dispute or claim arising under or relating to these
Terms, the Site, Services or any other products or services provided by us
(each, a “Dispute”), will be determined by confidential and binding arbitration
in Piscataway, New Jersey, United States, before a single arbitrator. The
arbitration shall be commenced and conducted by the Judicial Arbitration and
Mediation Services (“JAMS”) pursuant to its then current Comprehensive
Arbitration Rules and Procedures and in accordance with the Expedited Procedures
in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration
Rules and Procedures. Judgment on the arbitrator’s award may be entered in any
court having jurisdiction. The parties will treat all disputes arising under
these Terms, including arbitration proceedings and awards, as Confidential
Information of both parties, except as necessary in connection with a judicial
challenge to or enforcement of an award or otherwise required by law or judicial
decision. Notwithstanding the above, either party may seek injunctive relief in
a court of competent jurisdiction, and issues of patent or copyright ownership
or infringement may be decided in the state or federal courts of the State of
New Jersey and the United States sitting in Middlesex County in the State of New
Jersey. The prevailing party in any action arising from or relating to these
Terms shall be entitled to recover its reasonable attorneys’ fees and costs
including, without limitation, arbitration and expert fees.

15.2. Governing Law. These Terms are governed by the laws of the State of New
Jersey, without regards to its conflict of laws principles. The application of
the United Nations Convention on Contracts for the International Sale of Goods
is expressly excluded.

15.3. Class Action Waiver. Both parties agree that all claims brought against
the other must be brought in such party’s individual capacity, and not as a
plaintiff or class member in any purported class action, collective action,
private attorney general action or other representative proceeding, except to
the extent such restriction is prohibited by applicable law.


16. GENERAL TERMS

16.1. Assignment. You may not assign these Terms or your rights and obligations
without the prior written consent of SwagUp, but SwagUp may freely assign or
transfer these Terms and its rights and obligations, in whole or in part,
without restriction. Subject to the foregoing, these Terms will be binding upon,
and inure to the benefit of the parties and their respective successors and
assigns.

16.2. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when sent electronically,
via e-mail or regular mail to the address provided by you. When you use the Site
or Services or send communications to us through the Site, you are communicating
with us electronically. You consent to receive electronically any communications
related to your use of the  Site and Services. 

16.3. Relationship of the Parties. The parties are independent contractors and
will have no right to assume or create any obligation or responsibility on
behalf of the other party. Neither party shall hold itself out as an agent of
the other party. These Terms and any Agreement will not be construed to create
or imply any partnership, agency, joint venture or formal business entity of any
kind.1

16.4. Severability. If any provision of these Terms or any Agreement is held
invalid or unenforceable, it shall be replaced with the valid provision that
most closely reflects the intent of the parties and the remaining provisions of
these Terms will remain in full force and effect.

16.5. Force Majeure. SwagUp shall not be in default or liable for any loss,
damage, or penalty resulting from any failure or delay in the performance of its
obligations where such failure or delay is due to civil disturbances, riot,
epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of
God, flood, fire, labor strikes, sabotage, fluctuations or unavailability of
electrical power, network access or equipment, or any other circumstances or
causes beyond our reasonable control.

16.6. Entire Understanding. Both parties agree that these Terms, including all
exhibits and addenda hereto and all Purchase Orders, is the complete and
exclusive statement of the mutual understanding of the parties and supersedes
all previous written and oral 

agreements, communications and other understandings relating to the subject
matter of the

se Terms, and that all waivers and modifications must be in a writing signed by
both parties, except as otherwise provided herein.  To the extent of any
conflict or inconsistency between the provisions in these Terms and any services
agreement, exhibit or addendum hereto or any Purchase Order, Shop Terms,
Membership Terms and the benefits of such Membership, the terms of the
applicable service agreement, exhibit, addendum or Purchase Order or Membership
Terms or Shop Terms shall prevail.

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