The following describes the terms on which SwopLot offers you access to our services.
Welcome to SwopLot. By using the services available from the domain and sub-domains of www.SwopLot.com (the "Site") you are agreeing to the following terms with SwopLot Inc. and the general principles for the web site.
This Agreement is effective on September 1st, 2006 for current users, and upon acceptance for new users.
While using the Site, you will not:
· post content or items in an inappropriate category or areas on the Site;
· violate any laws, third party rights, or our policies such as the Prohibited and Restricted Items policies;
· use the Site if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our Site;
· fail to deliver payment for items purchased by you, unless the seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot authenticate the seller's identity;
· fail to deliver items purchased from you, unless the buyer fails to meet the posted terms, or you cannot authenticate the buyer's identity;
· manipulate the price of any item or interfere with other user's listings;
· circumvent or manipulate our fee structure, the billing process, or fees owed to SwopLot;
· post false, inaccurate, misleading, defamatory, or libelous content (including personal information);
· take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the Site or for using it for purposes unrelated to SwopLot);
· transfer your SwopLot account (including feedback) and User ID to another party without our consent;
· distribute or post spam, chain letters, or pyramid schemes;
· distribute viruses or any other technologies that may harm SwopLot, or the interests or property of SwopLot users;
· copy, modify, or distribute content from the Site and SwopLot's copyrights and trademarks; or
· harvest or otherwise collect information about users, including email addresses, without their consent.
SwopLot and the Community work together to keep the site working properly and the Community safe. Please report problems, offensive content, and policy violations to us.
Joining SwopLot is free. We do charge fees for using other services, such as listing items. When you list an item or use a service that has a fee you have an opportunity to review and accept the fees that you will be charged based on our Fees schedule, which we may change from time to time. Changes to that Policy are effective after we provide you with at least fourteen days' notice by posting the changes on the Site. We may choose to temporarily change the fees for our services for promotional events (for example, free listing days) or new services, and such changes are effective when we post the temporary promotional event or new service on the Site.
Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with the Site in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and for accounts over 180 days past due, deducting the amount owed from your PayPal account balance.)
When you give us content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future. (We need these rights to host and display your content.)
You will not hold SwopLot responsible for other users' actions or inactions, including things they post. You acknowledge that we are not a traditional retailer or auctioneer. Instead, the Site is a venue to allow anyone to swap, exchange, and trade just about anything, at anytime, from anywhere, in a variety of pricing formats and venues. We are not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction.
We do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller. Unless the buyer and the seller agree otherwise, the buyer will become the item's lawful owner upon physical receipt of the item from the seller, in accordance with California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2). Further, we cannot guarantee continuous or secure access to our services, and operation of the Site may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions. We are not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of our Site. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraph, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, and (b) $100.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
The Site contains robot exclusion headers. Much of the information on the Site is updated on a real-time basis and is proprietary or is licensed to SwopLot by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission.
Additionally, you agree that you will not:
· take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
· copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of SwopLot and the appropriate third party, as applicable;
· interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or
· bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees), harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, legal notices shall be served on SwopLot's national registered agent (in the case of SwopLot) or to the email address you provide to SwopLot during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.
If a dispute arises between you and SwopLot, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and SwopLot agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to http://www.swoplot.com/contact.php. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
Law and Forum for Disputes - This
Agreement shall be governed in all respects by the laws of the State of
California as they apply to agreements entered into and to be performed
entirely within California between California residents, without regard to
conflict of law provisions. You agree that any claim or dispute you may have
against SwopLot must be resolved by a court located
in Santa Clara County, California, except as otherwise agreed by the parties or
as described in the Arbitration Option paragraph below. You agree to submit to
the personal jurisdiction of the courts located within
· Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
· Improperly Filed Claims - All claims you bring against SwopLot must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, SwopLot may recover attorneys' fees and costs up to $1000, provided that SwopLot has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.