Terms & conditions

These Terms and Conditions (the “Terms”) together with any applicable Order Form(s) (collectively, the “Agreement”) form a legally binding agreement by and between Swap Commerce Ltd (“Swap”) and the Merchant identified in the Order Form (“Merchant”) (each a “Party”, together the “Parties”).

Swap may amend these Terms and Conditions from time to time by posting a new copy of these Terms and Conditions on this webpage or a successor page or otherwise providing Merchant with notice of such amendment. If Merchant does not agree to such amendment, Merchant must and shall stop using the Services. Merchant’s continued use of the Services after any amendment constitutes Merchant’s binding acceptance of such amendment.

By executing an Order Form, the Merchant agrees to be bound by these Terms, including the Product Terms and the DPA.

Some Products may be subject to additional terms specific to that Product as set forth in the Product Terms. By accessing or using a Product governed by Product Terms, Merchant also agrees to the applicable Product Terms. Product Terms for Services that Merchant does not purchase or use do not apply to Merchant.

Unless otherwise defined in the body of the Agreement or above, any capitalised terms have the meaning given to them in Section 17.

THE PARTIES AGREE AS FOLLOWS:

Services
1. Platform. Merchant may use the Platform in accordance with this Agreement. Swap will use commercially reasonable efforts to maintain the operation and availability of the Platform in accordance with the Service Levels.
2. Products. Merchant may purchase Products by entering into one or more Order Forms with Swap for Products. Swap will use commercially reasonable efforts to provide Merchant and (where applicable) Authorised Users with the Products in accordance with this Agreement.
3. Use of the Platform. Swap grants Merchant a limited, personal, non-exclusive, non-sublicensable and non-transferable right during the Term to access the Platform to use the ordinary features and functionalities of the Platform for Authorised Users to use the Services.
4. Connecting to the Platform from Merchant Apps using Swap API. Swap grants Merchant a limited, personal, non-exclusive, non-sublicensable and non-transferable right and licence during the Term to use the relevant Swap APIs to integrate the Services into Merchant’s e-commerce applications, products or services (“Merchant Apps”) in accordance with the Documentation to enable Authorised Users to interact with the Services via those Merchant Apps.
5. Window Shop. Swap may from time to time in its sole discretion provide and operate the Window Shop. Swap may use Connected Data to display Merchant’s products in the Window Shop, allow Swap’s customers to browse Merchant’s products in the Window Shop, and redirect Swap’s customers from the Window Shop to purchase products from the Merchant.
6. Authorised Users. Swap allows different access levels to Authorised Users as further set out in the Documentation. Merchant is solely responsible for the acts and omissions of the Authorised Users. Merchant shall immediately notify Swap of any unauthorised use of any Authorised User’s usernames, passwords and other necessary credentials for the Services or any Merchant Apps (“Access Credentials”). Merchant shall: (a) ensure that: (i) only Authorised Users access the Services; and (ii) each Authorised User maintains the confidentiality of their Access Credentials; (b) not allow any Access Credentials allocated to an Authorised User to be used by more than one individual Authorised User; and (c) immediately notify Swap if any Staff Users with Access Credentials ceases to be employed or otherwise engaged by Merchant.
7. Changes to Services. Merchant acknowledges that the Services may change from time to time. Swap will use commercially reasonable efforts to notify Merchant of any material changes to the Services prior to their implementation.
8. Excused Performance. Swap’s failure to comply with this Agreement shall be excused if such failure is caused by a breach, non-performance or any other default by Merchant under this Agreement, and/or any failure by Merchant to comply with Applicable Law.
Swap API Terms
1. No Endorsement. Merchant shall not represent to any third party that Swap endorses, warrants, guarantees or makes any other commitments with respect to the operation or performance of any Merchant Apps.
2. No support. Merchant is solely responsible and liable for any Merchant Apps, and Swap shall have no obligation to provide support, maintenance or any other services to any person with respect to the access, use of, development or delivery of any Merchant Apps (other than to provide the Swap APIs under and subject to this Agreement).
3. API Keys. Merchant shall ensure the ongoing security and control of its API keys and any other credentials required to use any Swap APIs, and shall not exchange or transfer any such API keys or other credentials from, to or with any third party without Swap’s express written consent.
4. Supported Versions. Merchant shall only use supported versions of the Swap APIs, and shall promptly implement any updates and patches to the Swap APIs notified to Merchant from time to time. Swap shall have no liability to Merchant arising out of any use by Merchant of any unsupported Swap APIs, which shall be at Merchant’s own risk.
5. Throttling. Swap may from time to time permanently or temporarily impose reasonable limits on use of the Services via the Swap APIs (e.g., throttling or rate-limiting calls made via Merchant Apps). Without prejudice to the foregoing, Swap may impose such limits where it reasonably believes that the volume of calls made via the Swap APIs would adversely impact the Swap Technology, have a detrimental effect on the operation of the Services and/or adversely affect Swap’s other customers and users.
OWNERSHIP AND LICENSING
1. Swap Ownership. As between the Parties, Swap retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to the Swap Technology. Merchant will not acquire any right, title or interest in or to the Swap Technology (subject only to the limited rights expressly granted in Section 1.3 and 1.4), and Swap reserves all rights therein and thereto not expressly granted in this Agreement.
2. Merchant Ownership. As between the Parties, Merchant retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to all Merchant Content and any Merchant Apps (excluding always the Swap APIs).
3. Licence to Swap. Merchant hereby grants to Swap a non-exclusive, worldwide, royalty-free and fully paid-up licence during the Term to use any Merchant Content, Connected Applications, Merchant Apps, and any other relevant Intellectual Property Rights owned, licensed or made available by Merchant via any method, as necessary to provide, operate and make available the Services to Merchant in accordance with this Agreement (including to enhance, develop or improve the Swap Technology) and to provide and operate Window Shop. Furthermore, Merchant acknowledges that Swap may collect and use general usage information about use of the Services, to be complied into an aggregated or de-identified form, for use to: (i) enhance, develop or improve the Swap Technology; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Merchant-only statistics will be disclosed to third parties.
4. Training Licence. Merchant hereby grants Swap a non-exclusive, fully sub-licensable, transferable, worldwide, perpetual and irrevocable, royalty-free and fully paid-up licence to use Merchant Content to develop or improve the Swap Technology (any results thereof, “Swap Improvements”), including to create, train, test, refine or improve any artificial intelligence systems or models, provided that Swap will not disclose any Merchant Content in a manner that could identify the Merchant or any Authorized User.
FEES
1. Payments. Merchant shall pay the Fees to Swap in accordance with this Section 4, the Product Terms and any relevant terms of the Order Form.
2. Invoicing and Payment. Swap shall issue Merchant with invoices monthly in respect of any Fees that come due and payable and Merchant shall pay the amounts shown in all such invoices in full within fourteen (14) days of the invoice date, unless otherwise agreed in the Order Form.
3. Fees. All Fees: (a) shall be payable in the currency agreed in the Order Form and, where necessary, shall be converted in accordance with the prevailing exchange rate at the end of the month, rounded to the nearest second decimal place; (b) are non-cancellable and non-refundable unless and to the extent expressly provided otherwise in this Agreement; and (c) are exclusive of any and all taxes (including VAT).
4. CHANGES IN FEES AND SWAP SHIPPING COSTS. Swap reserves the right to increase the Fees following the Initial Term, and each Renewal Term thereafter, provided that Swap will provide notification of any such increase in advance of the end of the Initial Term or then-current Renewal Term (as applicable) and the Merchant may terminate the agreement prior to the change coming into effect. Notwithstanding the foregoing, Merchant acknowledges that Carriers may update their rate cards (including applicable fuel surcharges) used for calculating Swap Shipping Costs from time to time. In response to such changes by Carriers, Swap may immediately adjust the applicable Swap Shipping Costs proportionate to price increases by the Carriers. Swap will use reasonable endeavours to provide notification to Merchant as soon as possible after receiving notice from the Carriers.
5. Late payments. In addition to any other rights or remedies available to Swap, if Merchant fails to pay any sums by the due date: (a) any portion of any sums that is not paid when due and payable will accrue interest equal to the higher of: (i) six percent (6%) per annum above the Bank of England’s base lending rate from time to time; or (ii) the default statutory rate applicable from time to time, accruing on a daily basis and being compounded quarterly, from the time the indebtedness arose, with interest on all overdue interest accruing at the same rate and calculated and payable in the same manner until fully paid, whether before or after judgment; and (b) Swap may suspend the provision of any access to the Services until payment of the sums is made by Merchant in full without liability to Merchant or prejudice to any other rights or remedies available to Swap in the circumstances.
RESTRICTIONS
1. Merchant shall not and shall not suffer, allow, assist or enable any other person (including Authorised Users) to: (a) use the Services, the Merchant Apps or Documentation in any manner or for any purpose that is restricted by or inconsistent with this Agreement and/or Applicable Law; (b) provide or otherwise make the Services available to any third parties who are not Authorised Users; (c) use the Services or the Merchant Apps to engage in any unsolicited or unauthorised advertisements, promotion, spam, or any aggressive advertising or marketing practices; (d) use the Services or the Merchant Apps in a way which is abusive, defamatory, obscene, offensive, harmful, hateful, immoral, vulgar or objectionable; (e) use Swap’s Confidential Information obtained when using the Services to create, market or distribute any product or service that is similar to, competitive with, or otherwise replicate or seek to replicate any features or functionalities of, the Services or any other part of the Swap Technology; (f) introduce to the Swap Technology any ‘back door’, ‘drop dead device’, ‘time bomb’, ‘Trojan horse’, ‘virus’ or ‘worm’ or any other equivalent code, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of the Swap Technology or any device, system, data or file owned or controlled by Swap or any third party; (g) modify, copy, resell, rent, lease, sub-licence, load, merge, adapt, translate, or create derivative works of, the Services and/or Documentation save as expressly permitted under this Agreement (including with respect to the Swap APIs); (h) contest, challenge or otherwise make any claim or take any action adverse to Swap’s ownership of, or interest in, the Swap Technology; (i) re-use, disseminate, copy, or otherwise use the Swap Technology in a way that infringes, misappropriates, or violates any Intellectual Property Rights or other right of Swap or any third party; (j) engage in competitive analysis or benchmarking of the Services; (k) remove, alter or obscure any trade mark notice, copyright notice or any other proprietary notice from the Services and/or Documentation; (l) circumvent, disable, or interfere with security-related, authentication-related, copy-protection or rate-limiting features of the Services; (m) reverse engineer, decompile, unbundle or disassemble the whole or any part of the Services, unless and to the extent unavoidably permitted by Applicable Laws for limited interoperability purposes; (n) impose an unreasonable or disproportionately large load or strain on the Services; (o) use the Services in relation to any shipments of items restricted under local or international shipping regulations; or (p) take any action designed or intended to do any of the foregoing.
2. In addition to any other rights or remedies available to Swap, if Merchant breaches this Section 5, Swap may suspend the provision of or any access to the Services or terminate this Agreement for material breach in accordance with Section 14.2.
WARRANTIES AND DISCLAIMERS
1. Merchant Warranty. Merchant warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times, all necessary rights, power, consents and authority: (a) to use Merchant Content, Merchant Apps, Connected Data and Connected Applications as contemplated by this Agreement; and (b) to grant Swap the rights and licences set out in Section 3.3. Merchant warrants and represents on an ongoing basis that all Connected Data provided to Swap in connection with this Agreement is accurate and complete.
2. Limited Warranties. Each Party warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times, the requisite power, capacity and authority to enter into this Agreement, to perform and carry out its the obligations under this Agreement. Swap warrants that, during the Term, the Services will materially conform to the then-current Documentation when used in accordance with that Documentation and the provisions of this Agreement; provided that such warranty shall not apply: (a) in the event that Merchant has breached this Agreement; or (b) to any defects or issues arising as a result of: (i) any modification by any person other than Swap; and/or (ii) use of the Services in combination with other products, hardware, equipment, software, or data not made available by Swap to be used with the Services.
3. DISCLAIMER. Except as expressly provided in this Agreement, the Services are provided “as is” and to the fullest extent permitted by Applicable Law, Swap disclaims all other conditions, warranties, representations, undertakings, or other terms which might have effect between the Parties with respect to the Services and Documentation, or otherwise be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, accuracy, reasonable skill and care, fitness for any particular purpose, non-infringement, ability to achieve a particular result or arising from course of dealing or usage of trade.
MERCHANT DEPENDENCIES

Merchant shall: (a) implement and maintain effective technical and organisational measures (including security policies, procedures, controls, and systems) to prevent unauthorised disclosure of Access Credentials and unauthorised access to the Services or a Merchant App; (b) secure any systems and devices Merchant and its Authorised Users uses to access the Services; (c) ensure that all Authorised Users of the Services only access the Services or a Merchant App, using a supported version of the systems and technologies (e.g., browsers, operating systems etc.) that are listed in the Documentation as supported by Swap from time to time; (d) ensure that it has an internet connection with adequate bandwidth for Authorised Users to access and use the Services or any Merchant Apps; (e) ensure that it maintains connectivity to the extent necessary to prevent network performance degradation; and (f) maintain all necessary back-up copies of all Merchant Content, and Merchant further acknowledges that it, and not Swap, is solely responsible for doing so.

THIRD-PARTY SERVICES
1. Third-Party Services. Certain elements of the Services may incorporate functionality of, or enable access to, certain third-party tools, systems, applications and/or platforms (“Third-Party Services”). The incorporation of the functionality of, or Merchant’s and its Authorised Users’ ability to access, certain Third-Party Services via the Services may vary depending upon the Services purchased and functionalities enabled or disabled by Merchant through its configuration of certain features of the Services. Merchant acknowledges that by using the Services (including through its configuration of relevant functionalities thereof, as and where applicable), it is instructing Swap to share any Merchant Content with the relevant providers of such Third-Party Services to the extent necessary to facilitate such functionality or access.
2. Third-Party Agreements. Merchant acknowledges that Merchant and/or its Authorised Users may be required to enter into certain agreements with the providers of such Third-Party Services and in the event the relevant agreements are not entered into, Merchant and/or its Authorised Users may be unable to access: (a) such Third-Party Services; and/or (b) any or all of those elements or functionalities of the Services that rely upon such Third-Party Services.
CONNECTED APPLICATIONS
1. Connected Applications. Certain elements of the Services may permit or enable Merchant and/or its Authorised Users to link or otherwise connect or integrate Merchant’s Connected Applications to the Services (including via custom or pre-built integrations). By connecting any Connected Application to the Services, Merchant: (a) represents and warrants that it is entitled to link or otherwise connect the Connected Application to the Services; and (b) instructs Swap to access, use and/or share any Merchant Content as necessary to perform and enjoy this Agreement.
2. NO LIABILITY. Merchant acknowledges that Connected Applications are not under Swap’s control and Swap is not responsible for Connected Applications, and Swap will have no liability for any unavailability or failure of any Connected Application, or any third party provider’s decision to discontinue, suspend or terminate any Connected Application.
CONFIDENTIAL INFORMATION
1. Use Limitation. Neither Party shall use the other’s Confidential Information for any purpose other than the performance and enjoyment of the obligations and rights set out in this Agreement.
2. Disclosure to Representatives. Each Party shall keep the other’s Confidential Information confidential and, except as otherwise provided in this Agreement, shall limit access to the other’s Confidential Information to those employees, agents, representatives or subcontractors who have a genuine ‘need to know’, who are subject to confidentiality obligations no less restrictive than those set forth in this Section 10, and who have been informed of the confidential nature of such Confidential Information.
3. Disclosure Required by Law. Notwithstanding the foregoing, the receiving Party may disclose the other’s Confidential Information to the limited extent that such disclosure is required by Applicable Law or by the order of a court or similar regulatory or administrative body; provided that the receiving Party shall promptly notify the other Party in writing of such required disclosure and shall cooperate with the other Party if the other Party seeks a protective order in relation to any such disclosure and/or any limitations on the further use and disclosure of such Confidential Information.
DATA PROTECTION

The DPA is incorporated hereby by reference and shall apply in accordance with its terms in relation to Swap’s processing of Merchant Personal Data on Merchant’s behalf in performance of this Agreement.

INDEMNITIES
1. Swap Indemnity. Subject to Sections 12.2 and 12.3, Swap shall indemnify Merchant from and against Losses incurred by Merchant as a result of damages and costs (including reasonable legal and professional fees and disbursements) awarded in final judgment or agreed in final settlement of any third party Claim against Merchant that the Merchant’s use of the Services within the scope of the rights granted to Merchant under this Agreement, infringes, misappropriates or violates the Intellectual Property Rights of a third party (this indemnity, the “Swap Indemnity”). The obligations set forth in this Section 12.1 shall constitute Swap’s entire liability and Merchant’s sole remedy for any actual or alleged infringement, misappropriation or violation of any Intellectual Property Rights of a third party arising out of or in connection with this Agreement.
2. Merchant Obligations. Merchant shall: (a) notify Swap in full, accurate and complete detail in writing promptly (and in any event within two (2) Business Days) after it becomes aware of any event or any Claim, which it believes may give rise to a claim for indemnification under Section 12.1 (an “Indemnified Claim”); (b) allow Swap sole authority to control the defence and settlement of any Indemnified Claim; (c) provide Swap with all reasonable cooperation in the defence of such Indemnified Claim; and (d) not settle or compromise any Indemnified Claim or make any admission of liability without the express prior written consent of Swap. In event of any Indemnified Claim, at its option, Swap may elect to: (x) modify or replace all or any relevant part of the Services so that it becomes non-infringing; (y) obtain any required licence(s) to use the applicable third party Intellectual Property Rights; or (z) terminate this Agreement on written notice to Merchant and refund to Merchant any pre-paid Fees pro-rated to reflect the remainder of the Initial Term or then-current Renewal Term (as applicable).
3. General Indemnification Exclusions. Swap shall have no liability whatsoever to Merchant under the indemnity set out in Section 12.1 in respect of any Indemnified Claims to the extent arising directly or indirectly as a result of: (a) any breach, non-performance or any other default by Merchant under of this Agreement (including of the restrictions outlined in Section 5 and/or any failure to meet any of the dependencies set out in Section 7); (b) any use of the Services in combination with other products, hardware, equipment, software, data or other Content not provided to Merchant by Swap; (c) any modification to any part of the Services by any person other than Swap or its expressly authorised agents; (d) the Merchant Content and/or any use thereof by any person; (e) any part of the Merchant App (excluding the Services and Swap APIs) or any use thereof by any person; (f) any Connected Applications; and/or (g) any continued use of the Services after: (i) Merchant is told to cease such use; and/or (ii) Merchant knew or ought reasonably to have known that the Services infringed, misappropriated or violated any third party right (including Intellectual Property Rights).
4. Merchant Indemnity. Merchant agrees to indemnify Swap on demand for, and hold harmless Swap from and against, any and all Losses suffered or incurred by Swap arising out of or in connection with any third party Claim brought, made or threatened against Swap: (a) that any Merchant Content, Connected Applications, Merchant Apps, and any other relevant Intellectual Property Rights owned, licensed or made available by Merchant via any method infringes, misappropriates or violates the rights (including Intellectual Property Rights) of any third party; (b) arising out of or in connection with any products purchased by Consumers or any other third party from the Merchant whether or not via Window Shop; or (c) arising out of or in connection with the Merchant’s breach of this Agreement (this indemnity, the “Merchant Indemnity”).
LIMITATION OF LIABILITY
1. Unlimited Liability. Nothing in this Agreement limits or excludes the liability of either Party: (a) for death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) for violation of the other Party’s Intellectual Property Rights; (d) under the Swap Indemnity and the Merchant Indemnity (as applicable); (e) for any other act, omission, or liability which may not be limited or excluded by Applicable Law; or (f) in respect of Merchant, Merchant’s liability to pay Swap any Fees or any other sums due and payable under this Agreement.
2. EXCLUSIONS. Subject only to Section 13.1, neither Party shall in any circumstances be liable to the other Party whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any (a) loss, damage or liability (in each case whether direct or indirect) of profits, business, business opportunities, revenue, anticipated savings or wasted expenditure (including management time); (b) any loss, damage or liability (in each case whether direct or indirect) arising as a result of any loss or corruption of data or information; or (c) special, indirect or consequential loss or damage whatsoever, in each case (a) to (c) however arising under or in connection with this Agreement and even if the other Party was aware of the possibility that such loss or damage might be incurred.
3. LIABILITY CAP. Subject to Section 13.1, 13.2 and 13.4, each Party’s total aggregate liability in respect of any and all Claims (whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise) arising in connection with this Agreement shall under no circumstances exceed one hundred per cent (100%) of the Fees paid by Merchant under this Agreement in the twelve (12) months immediately preceding the first event (or first event in any series of connected events) giving rise to the Claim, provided that, the existence of more than one Claim or event (or series of connected events) from which liability arises shall not enlarge the limits set out in this Section 13.3.
4. LIABILITY UNDER THE PRODUCT TERMS. The Product Terms further limit Swap’s liability under this Agreement with respect to Losses incurred by Merchant and/or Consumer in connection with specific Services.
TERM AND TERMINATION
1. Commencement and duration. Unless terminated earlier pursuant to the terms of Section 14.2, this Agreement shall: (a) commence on the Effective Date set out in the Order Form and continue for the Initial Term; and (b) automatically renew for further successive Renewal Terms at the end of the Initial Term and at the end of each Renewal Term unless either Party gives written notice to the other Party not later than ninety (90) days before the end of the Initial Term or then-current Renewal Term to terminate this Agreement upon the expiry of the Initial Term or then-current Renewal Term.
2. Termination. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party: (a) commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so; or (b) becomes insolvent or unable to pay its debts, proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets, suffers the presentation of any petition, the making of any order shall or the passing of any resolution for its winding up (except for the purposes of a bona fide solvent amalgamation or reconstruction), bankruptcy or dissolution, otherwise proposes or enters into any composition or arrangement with its creditors or any class of them, ceases to carry on business or claims the benefit of any statutory moratorium, or undergoes any similar or equivalent process in any jurisdiction. The Parties acknowledge and agree that failure by Merchant to pay any Fees when due shall constitute a ‘material breach’ for the purposes of Section 14.2(a).
CONSEQUENCES OF TERMINATION
1. Consequences. On termination of this Agreement: (a) notwithstanding Section 4, Merchant shall promptly (and in any event within fourteen (14) days of the date of termination) pay Swap any outstanding balances owing to Swap under this Agreement and shall pay promptly (and in any event within fourteen (14) days of the invoice date) any invoices issued by Swap after termination, insofar these relates to Fees or other costs incurred under this Agreement prior to its termination ; (b) any and all licences, permissions and authorisations granted to Merchant and/or its Authorised Users by Swap under this Agreement will terminate automatically (for the avoidance of doubt, Merchant shall cease to use, and cause the cessation of all use of, the Services and the Merchant Apps); (c) Swap shall cease to collect Connected Data for Merchant and disable any connections to Connected Applications; and (d) subject to Section 15.2, each Party will promptly return all Confidential Information received from the other Party, together with all copies, or certify (on request from the other Party) in writing that all such Confidential Information and copies thereof have been destroyed.
2. Limitations. Any obligation to return, destroy or permanently erase Confidential Information outlined in Section 15.1 shall not apply: (a) in respect of any Confidential Information that Swap may be entitled to retain as necessary to comply with any legal, regulatory, judicial, audit, or internal compliance requirements; (b) in respect of any Confidential Information retained by a Connected Application, in accordance with any relevant terms governing use thereof; and (c) to any Confidential Information that is retained by Swap on electronic back‑up media made in the ordinary course of business and from which it cannot readily be isolated from other information and deleted, provided that, in each case, the provisions of Section 10 shall continue to apply to Swap’s retention of any such Confidential Information at all relevant times.
3. Survival and accrued rights. Any provision of this Agreement that either expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
GENERAL
1. Marketing. Merchant acknowledges and agrees that Swap may, and Merchant hereby grants Swap a right and licence to, include Merchant’s name and a description of the technology and services provided to Merchant under this Agreement in case study marketing content, lists of or references to any of Swap’s clients on its website and/or in proposals, and in other marketing materials.
2. Compliance with Laws. Merchant shall comply with all Applicable Laws including all Applicable Laws relating to anti-bribery, anti-corruption, anti-kickback, anti-terrorist financing, anti-fraud, prevention and detection of economic crime sanctions, prevention and detection of human trafficking and slavery, embargoes, trade and export controls with respect to its enjoyment, implementation and performance of this Agreement (including use of any Merchant Apps). Furthermore, Merchant represents and warrants (on an ongoing basis) that: (a) neither it, nor any of its officers or shareholders, is designated on or under any of the U.S. Department of Treasury’s List of specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders, The UK Sanctions List, the consolidated list of persons, groups and entities subject to EU financial sanctions, and/or any other list of sanctioned, prohibited or restricted parties or territories from time to time (each, a “Sanctions List”); and (b) no entity or person (whether natural or legal) that controls, is controlled by, or is under common control with Merchant (where “control” means the direct or indirect power to direct the affairs of an entity through voting power, economic or contractual interest or otherwise), or that is otherwise acting on behalf, or for the benefit, of Merchant, is designated on or under any Sanctions List.
3. Feedback. If Merchant provides feedback, suggestions or recommendations to Swap regarding the Client Technology, including any flaws, errors, bugs, anomalies, problems with and/or suggestions, desired features or improvements relating to the Services and its ongoing development (“Feedback”), Merchant hereby grants Swap an unrestricted, unconditioned, irrevocable and perpetual right and licence to freely use and exploit such Feedback without any requirement of compensation.
4. Force Majeure. No Party will be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure results from circumstances beyond its reasonable control (including, in respect of Swap, any failure resulting from the action or omission of a provider of any Connected Application, or any unavailability of any Connected Application, resulting from circumstances beyond Swap’s reasonable control) (a “Force Majeure Event”). If a Force Majeure Event continues for three (3) months, the unaffected Party may terminate this Agreement by giving thirty (30) days’ written notice to the other Party.
5. Subcontracting. Swap may engage any third party to perform its obligations under this Agreement (including to providers of Third-Party Services), provided that Swap shall remain fully liable to Merchant for performance of such obligations (subject to the exclusions and limitations outlined herein).
6. Assignment. Neither Party will assign any of its rights under this Agreement without the prior written consent of the other Party (not to be unreasonably withheld or delayed); provided that each Party may assign any of its rights under this Agreement to an Affiliate, but must notify the other Party in writing of such assignment. This Agreement will be binding upon the Parties and their respective successors and permitted assigns.
7. Notices. Any notice required to be given under this Agreement will be sent by email to the Notice Address set out in the Order Form. Notices will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9am on the first Business Day following its dispatch). A Party may change its details given on the Order Form by giving written notice to the other Party.
8. Variation. Unless and only to the extent expressly permitted in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
9. Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by this Agreement and supersedes all previous agreements (if any and whether in writing or not) between the Parties in relation to such matters. The Parties acknowledge and agree that, except as otherwise expressly provided for in this Agreement, they are not entering into this Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (whether a Party to this Agreement or not) in relation to the subject matter of this Agreement, provided that nothing in this Agreement shall exclude any Party from liability for fraud or fraudulent misrepresentation.
11. No Partnership or Agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
12. Rights of Third Parties. There are no third-party beneficiaries under this Agreement, and a person who is not a Party to this Agreement shall not be entitled to enforce any of its terms (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).
13. Order of Precedence. Where applicable, to the extent of any inconsistency or conflict between any provision(s) of this Agreement the following order of precedence applies (with the documents listed first prevailing over those listed subsequently): (a) the ‘Special Conditions’ section of the Order Form (but only with respect to that Order form); (b) the DPA; (c) the main body of these Terms and Conditions; (d) the Product Terms; (e) the Service Levels; (f) the Order Form (other than the Special Conditions section); and (g) the Documentation.
14. Governing law and jurisdiction. The Agreement and all matters arising from it (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) shall be governed by, and construed in accordance with, the laws of England. In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) (for the purposes of this Section 16.14, “Proceedings”) each of the Parties irrevocably submits to the exclusive jurisdiction of the courts of England and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that the Proceedings have been brought in an inappropriate forum provided that a judgment or order of any court may be enforced in any court of competent jurisdiction.
DEFINITIONS AND INTERPRETATION
1. The following definitions apply to this Agreement (including its recitals, above):

“3PL” means a third-party logistics company used by the Merchant and/or Swap in connection with this Agreement.

“Affiliate” means in relation to an entity, any entity that directly or indirectly controls, is controlled by, or is under common control with that entity from time to time.

“Applicable Law” means all laws, statutes, regulations and codes, and any administrative requirements, orders, policies and guidelines of any governmental authority, law enforcement agency, public body or judicial body (including any branches or related entities thereof), applicable to a Party under or in connection with this Agreement and in relation to Swap, those applicable to the provision of the Services, and in relation to the Merchant, those applicable to the receipt of the Services and to the products sold by the Merchant.

“Authorised Users” means Staff Users and Consumers.

“Business Day” means any day which is not a Saturday, Sunday or public holiday in London, United Kingdom.

“Business Hour” means the period from 8:00 a.m. to 8:00 p.m., local time in London, United Kingdom, on a Business Day.

“Carrier” means any entity providing international transportation or delivery services for Goods, including but not limited to postal services, courier services, and freight services, including Royal Mail, UPS, DHL, FedEx and Pro Carrier.

“Cart Value” means the total value of Goods sold by the Merchant in the Merchant's home currency in a given time period as billed by the Merchant to the Consumer. For the avoidance of doubt, this excludes Customs Fees, Duties, Import Fees, Import Taxes, Swap Shipping Costs and Merchant Shipping Costs.

“Claim” means any claim, demand, complaint, proceeding or other action.

“Confidential Information” means any information that is clearly labelled or identified as confidential, or reasonably ought to be treated as being confidential. Confidential Information excludes any information which: (a) is or becomes publicly known other than through a breach of this Agreement; (b) was in the receiving Party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party without reference to or reliance upon the disclosing Party’s Confidential Information and that independent development can be shown by contemporary written evidence.

“Connected Application” means any e-commerce system or application owned or controlled by Merchant, including Shopify and Magento, which is connected to the Services by, on behalf or at the direction of Merchant (including through Merchant’s linking of its account for a Connected Application with the Services using integrations made available as part of the Services).

“Connected Data” means any Content made available within the Services that is transmitted to the Services via any Connected Applications.

“Consumer” means Merchant’s customer who is authorised to use the Services on Merchant’s behalf under this Agreement.

“Consumer Shipping Costs” means the shipping costs for Goods payable by Consumer set by the Merchant and provided to Swap as Connected Data.

“Content” means any text, images, audio, video, data, or any other information.

“Customs Fees” means administration fees by customs officers and Carrier surcharges relating to customs applied to the Goods.

“Documentation” means any manuals, instructions, user guides published by Swap that describe the Services and its use, operation, features and functionality (including any documentation available from time to time at https://help.swap-commerce.com/ or any successor webpage).

“DPA” means Swap’s Data Protection Addendum set out at [INSERT URL] or any successor webpage and/or included with the Order Form.

“Duties” means duties and tariffs applied to Goods.

“Fees” means all fees and charges for the Services, calculated in accordance with the applicable Product Terms or set out in the Order Form.

“Global” means Swap’s ‘Global’ Product as further described in the Product Terms.

“Goods” means the Merchant’s goods with respect to which the Services are being provided.

“Import Fees” means disbursement fees, processing fees, handling charges, and harbour fees applied to Goods, but excluding any fees charged by 3PLs and/or due to use of 3PLs.

“Import Taxes” means taxes applied to Goods at the time of import (e.g. VAT, GST, HST).

“Intellectual Property Rights” means all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), so-called ‘personality rights’ and ‘publicity rights’ (including rights to natural person’s name, image and likeness), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Losses” means all losses, liabilities, damages, costs, claims, charges, regulatory fines, demands, actions and expenses (including legal and professional fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).

“Merchant” means the entity identified in the Order Form who is a counterparty to the Agreement.

“Merchant Content” means any Connected Data and any Content inputted by Authorised Users into the Services.

“Merchant Personal Data” has the meaning given to it in the DPA.

“Merchant Shipping” means the use of Merchant’s own shipping accounts with Carriers (either directly or through the Merchant’s 3PL) to ship Goods internationally.

“Merchant Shipping Costs” means costs of Merchant Shipping as agreed between the Merchant and the Carrier.

“Order Form” means any order form executed by and between Merchant and Swap.

“Platform” means Swap’s cloud-based software‑as‑a‑service ‘Swap’ platform as described in the Documentation, which is owned, operated and/or licensed by Swap.

“Product Terms” means the terms applicable to Products set out in Schedule 1 (Product Terms).

“Products” means Global, Returns, and any other products and services other than the Platform and Window Shop made available to the Merchant under this Agreement.

“Returns” means Swap’s ‘Returns’ Product as further described in the Product Terms.

“Service Levels” means the service levels for the Platform set out in Schedule 2 (Service Levels).

“Services” means the Platform, Products and Window Shop.

“Staff Users” means Merchant’s employees, other staff or service providers who are authorised to use the Services on Merchant’s behalf under this Agreement.

“Swap” means Swap Commerce Ltd, a company incorporated and registered in England and Wales with company number 13674425 whose registered office is at 86-90 Paul Street, London, EC2A 4NE.

“Swap APIs” means Swap’s application programming interfaces, which allow Merchant to integrate the Services into Merchant Apps.

“Swap Shipping” means the use of Swap’s shipping account with Carrier (either directly or through Swap’s 3PL) for shipping Goods internationally.

“Swap Shipping Costs” mean the cost of Swap Shipping calculated in accordance with the rate cards for different Carriers provided by Swap to the Merchant from time to time and the applicable plan or service selected by the Merchant, including any fuel surcharges, special handling fees, surcharges, ancillary or other charges charged by the Carrier.

“Swap Technology” means collectively (i) the Platform, as updated from time to time; (ii) any and all other technology and software owned or used by Swap under or in connection with the Platform, software code (in any form including source code and executable or object code), and other computer systems or technologies; (iii) any benchmarking, analytics or technical data relating to the performance or operation of the Platform; (iv) the Documentation as updated and amended from time to time; (v) any Swap Improvements; and (vi) any and all Intellectual Property Rights in or to each of (i)-(v).

“Term” means the initial subscription term (an “Initial Term”) and any renewal subscription term (a “Renewal Term”), each of the duration(s) set out in the Order Form.

“Total Landed Costs” means, in relation to Goods being shipped by or on behalf of the Merchant internationally, the cost calculated through Global or Clear which includes: (a) Customs Fees; (b) Duties; (c) Import Fees; and (d) Import Taxes; but excludes Swap Shipping costs (if applicable); Merchant Shipping Costs and/or the Consumer Shipping Costs.

“Window Shop” means the digital storefront managed by Swap where Consumers can browse for apparel.

“WMS” means a warehouse management system used by the Merchant in connection with this Agreement.

The following rules of interpretation shall apply in this Agreement: (a) to the extent not defined in this Section 17 or elsewhere in these Terms and Conditions, the capitalised terms set out as headings in the Order Form shall have the meaning given to them in that Order Form; (b) any reference to this Agreement terminating shall, where the context requires, include a reference to this Agreement terminating by expiry of the Term; (c) the words “include” and “including” (or similar) shall be construed as illustrative only and shall not limit the sense of the description, definition, phrase or term(s) that comes before the relevant term; and (d) any reference to the “Parties” means Swap and Merchant and “Party” shall mean one of them.
– Product Terms

In addition to the Platform, Merchant may purchase the following main Products by entering into an Order Form with Swap for such Products:

Global
Clear by Swap
Tax Compliance Services
Return

Swap may offer complementary and/or add-on Services for each of the main Products as further described in these Product Terms.

Only the Product Terms applicable to the Products purchased or used by Merchant and/or Authorised Users apply to the Merchant.

: Global
1. Product Description
  1. Total Landed Costs:
    1. Swap will calculate the Total Landed Costs for Goods.
    2. Swap’s obligation in paragraph 1.1.1 is dependent on Swap receiving as Connected Data accurate and complete information with respect to the Goods which shall at minimum include: a description of the Goods, sending and receiving addresses, the relevant HS code(s), and the base price of the Goods (without VAT, GST or HST).
    3. If the Merchant does not provide the relevant HS code(s) with respect to the Goods, Swap will generate HS codes based on the description provided by the Merchant (provided there is sufficient information for Swap to do so), however, it remains the sole responsibility of the Merchant to ensure these HS code(s) are correct.
    4. Swap will display the Total Landed Costs, as well as the Consumer Shipping Costs, in the Platform so that the Merchant can display the Total Landed Costs and/or the Consumer Shipping Costs to the Consumer.
  2. EU Import One Stop Shop (IOSS) and UK VAT:
    1. The Merchant may select to use Swap’s EU IOSS registration for shipments of Goods with value less than EUR 150.
    2. The Merchant may select to use Swap’s UK VAT registration for shipments of Goods with value less than GBP 135.
    3. If the Merchant selects to use Swap’s EU IOSS and/or UK VAT registrations (and so far in accordance with Applicable Law):
      1. Swap will share Swap’s IOSS and/or UK VAT registration numbers (as applicable) with the Merchant;
      2. Swap will then be considered a “deemed supplier” and pay VAT on shipments of these Goods; and
      3. the Merchant must not use Swap’s IOSS and/or UK VAT registration numbers for any other shipments.
    4. If Merchant does not use Swap’s registrations with EU IOSS and/or UK VAT (as applicable), the Merchant is responsible for payment of EU and/or UK VAT (as applicable) for shipments of Goods with value less than EUR 150 and/or GBP 135 (as applicable).
2. Add-on Services

The Merchant may choose to use the following add on Services with Global:

Shipping Services:
1. The Merchant must select whether to use Merchant Shipping or Swap Shipping. Further information about Swap Shipping can be found in the Documentation.
2. For Merchant Shipping:
  1. Swap’s calculation of the Total Landed Cost is an estimate, not a guarantee. The TLC Guarantee does not apply to Merchant Shipping and the Merchant will be responsible for paying the actual Duties, Import Fees and Import Taxes to the Carrier.
  2. Notwithstanding the foregoing, subject to the prior, written approval of Swap, the Merchant may set up ”third party billing” to Swap for a Carrier, whereby such Carrier shall invoice Swap for the Customs Fees, Duties, Import Fees and Import Taxes for shipments of the Merchant with such Carrier. In such a case, the TLC Guarantee as described in Section 2.1.3.3-2.1.3.7 will apply to these shipments. The Merchant is responsible for payment of any other fees due to the Carrier, including the Merchant Shipping Costs.
  3. A shipping label will be generated by either a shipping label provider or WMS, for which Swap may charge the Label Fees as described in the Order Form.
3. For Swap Shipping:
  1. The Merchant can select which Carrier to use for the shipment of Goods from the Carrier(s) presented by Swap.
  2. Swap will generate the shipping label.
  3. Subject to paragraph 2.1.3.5 (TLC Guarantee), Swap will pay the actual Total Landed Costs for the Goods to the Carrier.
  4. Swap guarantees the Total Landed Costs calculated by Swap (“TLC Guarantee”) if the following conditions are met:
    1. the Merchant has implemented and uses the Services in accordance with this Agreement and the Documentation;
    2. the Connected Data provided to Swap for the calculation are complete and accurate;
    3. the Goods are not subject to additional excise taxes (e.g. alcohol and tobacco);
    4. the Goods are not prohibited or restricted under local or international shipping regulations;
    5. the Goods are shipped within fourteen (14) days after the calculation.
  5. If the conditions of the TLC Guarantee are met, Swap will invoice the Merchant for the Total Landed Costs calculated by Swap in accordance with paragraph 1.1 and Swap Shipping Costs. If the actual Total Landed Costs due to the Carrier are lower than the Total Landed Costs calculated by Swap, Swap retains the difference.
  6. If the conditions of the TLC Guarantee are not met and Total Landed Costs calculated by Swap are lower than the actual Total Landed Costs, Swap will invoice the Merchant for the actual Total Landed Costs paid to the Carrier for the Goods.
4. The Merchant remains the exporter of record for the Goods for import purposes.
Track Services:
1. Track Services allow Consumers to track Goods sent using the Shipping Services across all stages of a shipment, from the order confirmation to the delivered stage.
2. The Merchant must integrate their Shopify store with Swap’s tracking tool and enable the required integration(s) if Merchant selects to use the Track Services.
3. Swap will provide the Merchant with a Consumer portal for tracking Goods which the Merchant may configure as further described in the Documentation. To the extent available, the Consumer portal will display tracking information of the relevant Goods, including order status and an estimated delivery date, and a link to Carrier website to verify tracking information.
4. The Consumer may sign up to receive email and/or SMS notifications from Swap on behalf of the Merchant with respect to Goods tracked when certain milestones or events are reached.
5. Without limiting Swap’s other rights under this Agreement, the Track Services may be temporarily suspended for downtime and maintenance or any other reason deemed reasonable. Swap will use commercially reasonable efforts to communicate planned downtime periods to the Merchant and Consumers in advance.
GPSR Compliance Services:
1. Swap provides the following GPSR Compliance Services to support Merchant’s compliance with the General Product Safety Regulation (EU) 2023/988 (“GPSR”):
  1. an appointment of an EU representative to be the Merchant’s registered point of contact under the GPSR (“EU Representative”);
  2. assistance by the EU Representative with maintenance of technical documentation for compliance with GPSR, including a high-level review of the Merchant’s policies and documentation, guidance on product labelling, packaging, user manuals and risk assessments; and
  3. any other GPSR Compliance Services offered by Swap or the EU Representative from time to time.
2. The Merchant must:
  1. provide all necessary access to information, facilities, and materials as reasonably required for delivery of the GPSR Compliance Services;
  2. fully cooperate with Swap and the EU Representative in all matters relating to the GPSR Compliance Services;
  3. notify Swap and the EU Representative of any product issues, sales halts, or recalls regarding the Goods;
  4. maintain, at its own expense, appropriate insurance coverage, including general liability and product liability insurance, with coverage adequate to address the risks arising from the Goods and promptly produce evidence of such insurance coverage to Swap and the EU Representative on request; and
  5. use the EU Representative’s address solely for representation purposes in relation to the Goods as required under the GPSR, and not for any other purpose.
3. The GPSR Compliance Services are consulting services, not legal services. The Merchant is fully responsible for its own compliance with the GPSR and all Applicable Laws. The Merchant should seek legal advice where necessary.
4. The GPSR Compliance Services may be offered only in relation to some categories of Goods, with some Goods excluded.
5. Swap may revoke access to the GPSR Compliance Service in case of mis-used or excessive use of the GPSR Compliance Service by the Merchant, as determined in Swap’s sole discretion.
Fees
1. The Merchant shall pay to Swap in accordance with the Agreement the monthly Global Fee set out in the Order Form defined as a percentage of Cart Value of all Global orders or, alternatively, the minimum amount as described in the Order Form.
2. In addition to the Global Fee, the Merchant shall pay to Swap the following if the Merchant uses Swap Shipping, or where “third party billing” has been set up in accordance with Section 2.1.2.2:
  1. the Swap Shipping Costs (if applicable);
  2. if the TLC Guarantee applies, the Total Landed Costs calculated by Swap; and
  3. if the TLC Guarantee does not apply, the actual Total Landed Costs paid by Swap to the Carrier.
Liability
1. To the maximum extent permitted by Applicable Law, Swap shall not be liable to the Merchant for any Losses arising out of or in connection with:
  1. inaccurate and/or incomplete Connected Data provided to Swap;
  2. any act or omission of a Carrier, 3PL or WMS (for example, any damaged or lost Goods, or failure to implement Swap’s instructions); and
  3. any act or omission of the EU Representative.
2. If the Merchant uses Swap Shipping and the Merchant suffers or incurs any Losses arising out of or in connection with any act or omission of a Carrier, Swap shall use commercially reasonable endeavours to provide the Merchant with administrative support for recovering such Losses from the Carrier in accordance with the Carrier’s standard terms and policies for submitting claims for compensation. To the maximum extent permitted by Applicable Law, Swap shall not be liable for any compensation above what is provided by the Carrier.
: Clear by Swap
Product Description
1. Clear Set-up
  1. Swap supports the set up and management of a structure whereby the Merchant can ship Goods to a Merchant Affiliate in the US before selling the Goods to Consumers in the US.
  2. Further description of the Clear Services and requirements that the Merchant must comply with when using Clear are set out in the Documentation.
  3. Without prejudice to the foregoing, to use Clear Services, the Merchant must:
    1. complete and maintain all documentation regarding the Goods, including their fair market value, price charged to Consumer and any other documentation required by Applicable Law; and
    2. comply with the requirements for Clear in the Documentation and any other requirements notified to the Merchant from time to time.
2. Total Landed Costs:
  1. Swap will calculate the Total Landed Costs for Goods.
  2. Swap’s obligation in paragraph 1.2.1 is dependent on Swap receiving as Connected Data accurate and complete information with respect to the Goods which shall at minimum include: a description of the Goods, sending and receiving addresses, the relevant HS code(s), and the base price of the Goods (without VAT, GST or HST).
  3. If the Merchant does not provide the relevant HS code(s) with respect to the Goods, Swap will generate HS codes based on the description provided by the Merchant (provided there is sufficient information for Swap to do so), however, it remains the sole responsibility of the Merchant to ensure these HS code(s) are correct.
  4. Swap will display the Total Landed Costs, as well as the Consumer Shipping Costs, in the Platform so that the Merchant can display the Total Landed Costs and/or the Consumer Shipping Costs to the Consumer.
3. Shipping
  1. The Merchant must use the Carrier as indicated by Swap to use for the shipment of Goods.
  2. Swap will generate the shipping label.
  3. Subject to paragraph 1.3.4 (TLC Guarantee), Swap will pay the actual Total Landed Costs for the Goods to the Carrier.
  4. Swap guarantees the Total Landed Costs calculated by Swap (“TLC Guarantee”) if the following conditions are met:
    1. the Merchant has implemented and uses the Services in accordance with this Agreement and the Documentation;
    2. the Connected Data provided to Swap for the calculation are complete and accurate;
    3. the Goods are not subject to additional excise taxes (e.g. alcohol and tobacco);
    4. the Goods are not prohibited or restricted under local or international shipping regulations;
    5. the Goods are shipped to a Consumer who is a consumer and not a business or other commercial entity; and
    6. the Goods are shipped within fourteen (14) days after the calculation.
  5. If the conditions of the TLC Guarantee are met, Swap will invoice the Merchant for the Total Landed Costs calculated by Swap in accordance with paragraph 1.2.1 and Swap Shipping Costs. If the actual Total Landed Costs due to the Carrier are lower than the Total Landed Costs calculated by Swap, Swap retains the difference.
  6. If the conditions of the TLC Guarantee are not met and Total Landed Costs calculated by Swap are lower than the actual Total Landed Costs, Swap will invoice the Merchant for the actual Total Landed Costs paid to the Carrier for the Goods.
  7. The Merchant remains the exporter of record for the Goods for import purposes.
Fees
1. The Merchant shall pay to Swap in accordance with the Agreement the monthly Clear Fee set out in the Order Form defined as a percentage of Cart Value of all Clear orders.
2. In addition to the Clear Fee, the Merchant shall pay to Swap the following:
  1. the Swap Shipping Costs (if applicable);
  2. if the TLC Guarantee applies, the Total Landed Costs calculated by Swap; and
  3. if the TLC Guarantee does not apply, the actual Total Landed Costs paid by Swap to the Carrier.
Liability
1. To the maximum extent permitted by Applicable Law, Swap shall not be liable to the Merchant for any Losses arising out of or in connection with:
  1. inaccurate and/or incomplete Connected Data provided to Swap;
  2. any act or omission of a Carrier, 3PL or WMS (for example, any damaged or lost Goods, or failure to implement Swap’s instructions); and
  3. any non-compliance by Merchant with Applicable Law.
2. If the Merchant suffers or incurs any Losses arising out of or in connection with any act or omission of a Carrier, Swap shall use commercially reasonable endeavours to provide the Merchant with administrative support for recovering such Losses from the Carrier in accordance with the Carrier’s standard terms and policies for submitting claims for compensation. To the maximum extent permitted by Applicable Law, Swap shall not be liable for any compensation above what is provided by the Carrier.
3. For the avoidance of doubt, the information provided by Swap regarding Clear by Swap is only meant to inform the Merchant as to the business operations that Swap’s system can technically facilitate. None of the information provided by Swap regarding Clear by Swap should be construed as legal advice. The Merchant remains solely responsible for ensuring its compliance with Applicable Law. Swap encourages the Merchant to seek advice from licensed legal practitioners to ensure compliance of its operations with Applicable Law.
: Tax Services
Product Description
1. Tax Compliance Services:
  1. For some jurisdictions, Swap will notify the Merchant if the Merchant reaches a threshold for payment of certain local taxes based on the Connected Data provided to Swap.
  2. The Merchant may select to provide Connected Data from point-of-sale software to Swap about in-person sales to support Swap’s calculation of these thresholds.
2. Tax Registration and Filing Services:
  1. The Merchant can select Swap to handle the Merchant’s registration for select taxes (e.g. US sales tax). The full list of jurisdictions and taxes supported by Swap is available upon request.
  2. If the Merchant wants Swap to handle the Merchant’s registration for a tax that is supported by Swap’s Tax Registration and Filing Services:
    1. the Merchant must accurately and completely fill in a tax information intake form during onboarding and respond to any further requests from Swap; and
    2. Swap will, on the basis of the information provided to Swap, prepare and complete tax filing in jurisdictions where Swap has established the Merchant owes tax, on behalf of the Merchant.
  3. Swap may work with local partners in certain jurisdictions to perform the Tax Registration and Filing Services, in which case the Merchant agrees that:
    1. Swap may share all Merchant Content, and any other relevant information provided by the Merchant to Swap, with the partner, insofar needed for the partner to assist in the performance of the Tax Registration and Filing Services; and
    2. Merchant shall provide all assistance to such partner that may reasonably be requested by Swap or the partner to perform the Tax Registration and Filing Services (e.g. providing a power of attorney for the partner to file taxes on behalf of the Merchant).
Fees
1. The Merchant shall pay Swap the Tax Compliance Fees as set out in the Order Form which may include:
  1. if the Merchant uses Tax Compliance Services, a monthly Tax Platform Subscription Fee, which may be invoiced at the start of each calendar month; and/or
  2. if the Merchant uses Tax Registration and Filing Services, a monthly fee for tax filings, which may be invoiced at the start of each calendar month; and/or
  3. if the Merchant uses Tax Registration and Filing Services, the fees for Tax Registration and Filing Services calculated in accordance with the Order Form, which may include fees for assistance with US state tax registrations, voluntary disclosures and backfilings and which may be invoiced by Swap immediately upon the Merchant requesting or triggering the service.
2. Swap retains the right to delay performance of the services listed in paragraph 2.1.3 until it has received payment for such service from the Merchant.
Liability
1. To the maximum extent permitted by Applicable Law, Swap shall not be liable to the Merchant for any Losses arising out of or in connection with:
  1. inaccurate and/or incomplete Connected Data provided to Swap;
  2. any act or omission of a Carrier, 3PL or WMS or any third party engaged by the Merchant (for example, any incorrect data, or failure to implement Swap’s instructions); and
  3. any non-compliance by Merchant with Applicable Law.
2. For the avoidance of doubt, we note that Swap is not a licensed accountant and does not provide tax advice. Swap’s Services may assist the Merchant in relation to the Merchant’s tax compliance. It remains solely the responsibility of the Merchant to comply with its tax obligations and to check any and all information and documents provided by Swap prior to submission to ensure that any information therein is correct and up to date. Swap encourages the Merchant to seek advice from licensed accountants or tax advisors on its tax liability in the jurisdictions where it is liable to pay taxes.

: Returns
1. Product Description
  1. User Experience:
    1. Swap will provide the Merchant with a link which the Merchant can share with a Consumer when the Consumer wants to return Goods.
    2. The Merchant can select a number of options to provide to the Consumer in relation to the Goods, which may include for example: Return, Exchange, Recycle, and/or Repair.
    3. The Merchant can select to charge the Consumer a fee for the services listed in Section 1.1.2., which Swap will collect from the Consumer and remit to the Merchant.
    4. The Consumer fills in the information as listed in the Documentation which Swap validates against the Connected Data received through Connected Application like Shopify.
    5. Swap may automatically email the Consumer about the return process.
    6. Find more information about the customisation available in the Documentation.
  2. Processing Returns:
    1. Merchant can mark Goods as returned in the Platform, either directly or through an integration with a third party if available.
    2. Consumer may be offered refund or store credit for the returned Goods.
  3. Processing Exchanges:
    1. Consumers can exchange Goods for the same item in a different colour or size, or a different item altogether.
    2. If the exchange results in a negative balance, the Merchant can ask Swap to collect the difference or collect the difference itself. If Swap collects the difference, Swap will set off the funds received against the Merchant’s invoice and, in case of a subsequent return of the exchanged item, would repay the Consumer their funds and set this off against the Merchant.
    3. The Merchant is responsible for sending out the new item.
  4. Quality Assessment:
    1. Swap may provide integrations with the WMS for the warehouse to communicate the status of returned Goods with the head office.
    2. Where applicable, Swap may process returns automatically based on status communicated by the warehouse through the integration with the WMS.
  5. Duty Drawback Scheme:
    1. If a Merchant uses both Global and Returns, the Merchant can choose to join Swap’s duty drawback scheme to help the Merchant in retrieving VAT paid (“Duty Drawback Scheme”) over items that are subsequently returned. If the Merchant chooses to do so, this shall be reflected on the Order Form, along with the countries for which Duty Drawback Scheme shall be applied by Swap.
    2. The Duty Drawback Scheme is subject to certain requirements that are different per jurisdiction where the Goods are sent and may require that a specific Swap’s Carrier is used.
    3. Swap will process claims and remit funds to the Merchant under the Duty Drawback Scheme quarterly. Please note some jurisdictions may take up to 12 months to process claims under the Duty Drawback Scheme.
2. Add-on Services

The Merchant may choose the following add-on Services with Returns:

Shipping Services:
1. The Merchant must select whether to use Merchant Shipping or Swap Shipping to ship returned Goods. Further information about Swap Shipping can be found in the Documentation.
2. For Merchant Shipping:
  1. the Merchant must provide Swap with the ability to create or retrieve shipping labels on behalf of the Merchant;
  2. Swap will generate the shipping label on behalf of the Merchant and provide the shipping label to the Consumer;
  3. Swap will provide the Merchant with a tracking link that the Consumer can use to track the returned Goods; and
  4. the Merchant is responsible for payment of all fees due to the Carrier.
3. For Swap Shipping:
  1. Swap will generate the shipping label on behalf of the Merchant and provide the shipping label to the Consumer;
  2. Swap will provide the Merchant with a tracking link that the Consumer can use to track the returned Goods; and
  3. the Merchant shall pay the Swap Shipping Costs to Swap in accordance with this Agreement.
Track Services:
1. Track allows Consumers to track Goods returned using Returns across all stages of a shipment, from the order confirmation to the delivered stage.
2. The Merchant must integrate their Shopify store with Swap’s tracking tool and enable the required integration(s) if Merchant selects to use Track.
3. Swap will provide the Merchant with a Consumer portal for tracking returned Goods which the Merchant may configure as further described in the Documentation. To the extent available, the Consumer portal will display tracking information of the returned Goods and a link to Carrier website to verify tracking information.
4. The Consumer may sign up to receive email and/or SMS notifications from Swap on behalf of the Merchant with respect to the returned Goods tracked when certain milestones or events are reached.
5. Without limiting Swap’s other rights under this Agreement, the Track Services may be temporarily suspended for downtime and maintenance or any other reason deemed reasonable. Swap will use commercially reasonable efforts to communicate planned downtime periods to the Merchant and Consumers in advance.
Recycle Services:
1. In certain jurisdictions, Swap may offer to the Merchant the option to recycle certain Goods returned using Returns by sending it to Swap’s recycling partners.
2. Swap reserves the right to discontinue the Recycle Services at any time.
Fees
1. The Merchant shall pay to Swap in accordance with the Agreement the monthly Returns Fee set out in the Order Form, which may be invoiced by Swap at the start of the calendar month. Unless otherwise agreed in an Order Form, the Returns Fee includes fees for: (a) Track Services; and (b) Recycle Services.
2. In addition to the Returns Fee, the Merchant shall pay to Swap the following:
  1. the Label Fees as indicated in the Order Form, in relation to creating return labels charged for shipment sent through Merchant Shipping.
  2. payment processing fees in relation to payments to/from Consumers on behalf of the Merchant.
  3. if the Merchant uses Swap Shipping, the Swap Shipping Costs as communicated to the Merchant.
Liability
1. To the maximum extent permitted by Applicable Law, Swap shall not be liable to the Merchant for any Losses arising out of or in connection with:
  1. any incorrect functioning of services provided by third party services providers selected by the Merchant (e.g. Shopify and Magento), including but not limited to:
    1. repayment to the Consumer; and
    2. issuance of gift cards.
  2. inaccurate and/or incomplete Connected Data provided to Swap; and
  3. any act or omission of a Carrier, Carrier intermediary, 3PL or WMS (for example, any damaged or lost Goods, incorrect provision of data or failure to implement Swap’s instructions).
2. If the Merchant uses Swap Shipping and the Merchant suffers or incurs any Losses arising out of or in connection with any act or omission of a Carrier, Swap shall use commercially reasonable endeavours to provide the Merchant with administrative support for recovering such Losses from the Carrier in accordance with the Carrier’s standard terms and policies for submitting claims for compensation. To the maximum extent permitted by Applicable Law, Swap shall not be liable for any compensation above what is provided by the Carrier.

– Service Levels
1. Uptime
  1. Swap shall use commercially reasonable efforts to ensure that the Platform and Swap APIs have an uptime of at least 99.5% per calendar month.
  2. The uptime commitment set out in paragraph 1.1 shall not apply for the following:
    1. Periods of scheduled maintenance or upgrades to the Platform and/or Swap APIs, provided that Swap gives Merchant at least forty-eight (48) hours’ prior written notice;
    2. Any period during which a Force Majeure Event, as defined in this Agreement, is in effect, provided Swap has implemented reasonable mitigations (e.g. alerts, fail-overs); and
    3. Any unavailability or degradation caused by events outside Swap’s reasonable control, including but not limited to third-party service or infrastructure failures, provided that Swap has taken commercially reasonable steps to identify and mitigate such risks.
  3. Swap shall monitor the uptime using industry-standard tools and make summaries of the monthly service level performance available to Merchant upon reasonable request.
  4. Failure to meet the uptime commitment set forth in this clause shall not constitute a breach of this Agreement, but the Parties shall meet in good faith to review the cause of the failure and agree on appropriate mitigation steps.
2. Response Times
  1. Swap will use commercially reasonable efforts provide the below service level response times:

An emergency condition that results in a total loss of a production service or a material breach of data security which has a severe and immediate impact on the business operations of Swap or its customers. No reasonable workaround exists. Examples: (i) complete unavailability of a core production environment or critical customer-facing system; (ii) confirmed security event involving unauthorized access, disclosure, corruption or destruction of confidential data; (iii) failure of a transaction processing system preventing all customers from completing transactions; and (iv) inability of all users to authenticate into core systems.

1 hour

A significant degradation of a production service that materially impacts a substantial portion of the customer base or a critical business function, but does not result in a total outage. A workaround may be possible but results in reduced service quality or performance. Examples: (i) functionality degradation impacting more than 25% of active users; (ii) major response time degradation for a critical service; (iii) partial outage of a critical subsystem where redundancy mitigates but does not eliminate impact; and (iv) data processing delays exceeding thresholds for high-priority workflows.

1 Business Hour

A service impairment affecting a limited number of customers or a non-critical business function, where a workaround is available that allows normal business operations to continue without significant disruption. Examples: (i) intermittent errors in non-critical service components; (ii) minor performance degradation affecting a limited subset of users; (iii) delayed non-urgent processing or reporting functions; and (iv) minor integration issues with third-party services where manual process is feasible.

1 Business Day

A minor service issue, cosmetic defect, or request for information or enhancement that has no impact on normal business operations. Examples: (i) user interface cosmetic errors or text changes; (ii) non-critical reporting discrepancies where critical decision-making is unaffected; and (iii) general service requests or inquiries that do not require urgent attention.

2 Business Days

General account management queries on the functionality of the Platform

5 Business Days