Terms and Conditions
Swappler's Terms of Use Agreement
Welcome to the Terms and Conditions of Swappler. Be sure to read through these to ensure you have an understanding of what your responsibilities are by using the site. By using the Swappler.com web site ("Swappler" or the “Site”), a service of Swappler Pty. Ltd., you (the “user” or “you”) agree to be bound by the following terms and conditions (the “Terms of Use” or the "Agreement"), including those available by hyperlink. If you have any questions, please refer to the Help section of the Site.
Before you may become a member of Swappler, you must read and accept all the terms and conditions in, and linked to, the Agreement. The Agreement is effective on March 1, 2009 for current users, and upon acceptance for new users.
1. Swappler is a Venue
Swappler acts as a venue to allow users who comply with Swappler’s policies to offer, sell, swap and buy certain clothing and accessaries within a fixed price format. Swappler is not directly involved in the transaction between buyers and sellers. As a result, Swappler has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. Swappler does not pre-screen users or the content or information provided by users. Swappler cannot ensure that a buyer or seller will actually complete a transaction.
Consequently, Swappler does not transfer legal ownership of items from the seller to the buyer. Swappler cannot guarantee the true identity, age, and nationality of a user. Swappler encourages you to communicate directly with potential transaction partners through the tools available on the Site. You may also wish to consider using a third party escrow service or services that provide additional user verification.
You agree that Swappler is a venue and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on Swappler. You use the Swappler service at your own risk.
2. Membership Eligibility
Age: Swappler's services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. Individuals under the age of 18 can use this service only in conjunction with and under the supervision of a parent or legal guardian. In this case, the adult is the user and is responsible for any and all activities.
Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. You are responsible for all applicable taxes. If you are an Australian sole trader or business and are registered for GST then you must declare this to Swappler. In addition, you must abide by Swappler’s policies as stated in the Agreement and these Swappler policy documents:
• The Swappler Swap and Store Guide
• Fees Policy
• Privacy Policy
• Copyright and Intellectual Property Policy
Password
Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify Swappler of any unauthorized use of your password or any breach of security. You also agree that Swappler cannot and will not be liable for any loss or damage arising from your failure to keep your password secure.
Account Information
You must keep your account information up-to-date and accurate at all times, including a valid email address. To sell items on Swappler, you must have a valid credit card on file with Swappler at all times.
Account Transfer
You may not transfer or sell your Swappler account and User ID to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
Right to Refuse Service
Swappler's services are not available to temporarily or indefinitely suspended Swappler members. Swappler reserves the right, in Swappler’s sole discretion, to cancel unconfirmed or inactive accounts. Swappler reserves the right to refuse service to anyone, for any reason, at any time.
3. Fees and Services
Joining Swappler and listing items to swap is free. Swappler charges fees for swapping an item with another user as well as a percentage of the sale price when an item sells. When you list an item you have an opportunity to review and accept the fees that you will be charged. Swappler's Fees Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Fees Policy and the fees for Swappler’s services are effective after Swappler provides you with at least fourteen (14) days' notice by posting the changes on the Site. However, Swappler may choose to temporarily change the Fees Policy and the fees for Swappler's services for promotional events; such changes are effective when Swappler posts the temporary promotional event on the Site. Swappler may, at Swappler's sole discretion, change some or all of Swappler's services at any time. In the event Swappler introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees charged by Swappler are quoted in Australian dollars.
You are responsible for paying all fees associated with using Swappler. Swappler keeps sellers' valid credit card or other accepted payment information on file. At the beginning of the month, each seller is emailed an invoice detailing the amount due. A seller must pay the amount due in full within 15 days of the date of the invoice. If the seller's account is not paid in full, the seller risks penalties such as the suspension of privileges and/or termination of the account as well as debt-collection proceedures.
Fees and Termination
If Swappler terminates your account, if you close your account, or if the payment of your Swappler fees cannot be completed for any reason, you remain obligated to pay Swappler for all unpaid fees plus any penalties, if applicable. If you have a question or wish to dispute a charge, contact Swappler.
4. Listing, Selling and Swapping
Listing Description
By listing an item on the Site you warrant that you and all aspects of the item comply with Swappler’s policies. You also warrant that you may legally sell or swap the item. You must accurately describe your item and all terms of sale in your Swappler shop. Your listings may only include text descriptions, graphics, video, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale or swap in that listing. If the "in stock" quantity is more than one, all items in that listing must be identical. Each unique item must have its own listing.
Shop Policies
All sellers are urged to outline shop policies for their Swappler shop. These policies may include, for example: shipping, returns, payment and selling policies. Sellers must create reasonable policies in good faith and must abide by such policies. All shop policies must comply with Swappler’s site-wide policies. Sellers are responsible for enforcing their own reasonable shop policies. Swappler reserves the right to request that a seller modify a shop policy.
Binding Sale
All sales and swaps are binding. The seller is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller’s listing (such as payment method), or (b) the seller cannot authenticate the buyer's identity. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance.
Fee Avoidance
The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive shipping fees or otherwise avoid fees. You may not alter the item's price after a sale for the purpose of avoiding Swappler transaction fees, misrepresent the item’s location, or use another user’s account without permission.
5. Prohibited, Questionable and Infringing Items and Activities
You are solely responsible for your conduct and activities on and regarding to Swappler and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, “Content”) that you submit, post, and display on Swappler.
Restricted Activities: Your Content and your use of Swappler shall not:
- 1. Be false, inaccurate or misleading;
2. Be fraudulent or involve the sale of illegal, counterfeit or stolen items;
3. Infringe upon any third party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy (See also, Swappler’s Copyright and Intellectual Property Policy;
4. Violate this Agreement, The Swappler Swap and Store Guide, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
5. Contain items that have been identified by your local laws as hazardous to consumers and therefore subject to a recall;
6. Be defamatory, trade libellous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including Swappler staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device;
7. Be obscene or contain child pornography;
8. Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
9. Host images not part of a listing;
10. Modify, adapt or hack Swappler or modify another website so as to falsely imply that it is associated with Swappler;
11. Appear to create liability for Swappler or cause Swappler to lose (in whole or in part) the services of Swappler’s ISPs or other suppliers;- 12. Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement, the Privacy Policy, the Swappler Swap and Store Guide, or other policy documents as posted on Swappler.
Furthermore, you may not list any item on Swappler (or consummate any transaction that was initiated using Swappler’s service) that could cause Swappler to violate any applicable law, statute, ordinance or regulation, or that violates the Terms of Use.
6. Content
License
Swappler does not claim ownership rights in your Content. You grant Swappler a license solely to enable Swappler to use any information or Content you supply Swappler with, so that Swappler is not violating any rights you might have in that Content. You grant Swappler 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 now known or not currently known, with respect to your Content. You agree to allow Swappler to store or re-format your Content on Swappler and display your Content on Swappler in any way as Swappler chooses, including publication on affiliate or partner sites. Swappler will only use personal information in accordance with Swappler's Privacy Policy.
As part of a transaction, you may obtain personal information, including email address and shipping information, from another Swappler user. Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for Swappler-related communications. Swappler has not granted you a license to use the information for unsolicited commercial messages. Without limiting the foregoing, without express consent from the user, you are not licensed to add any Swappler user to your email or physical mail list. For more information, see Swappler’s Privacy Policy.
Re-Posting Content
By posting Content on Swappler, it is possible for an outside website or a third party to re-post that Content. You agree to hold Swappler harmless for any dispute concerning this use. If you choose to display your own Swappler-hosted image on another website, the image must provide a link back to its listing page on Swappler.
7. Information Control
Swappler does not control the Content provided by users that is made available on Swappler. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.
Additionally, there may also be risks dealing with international trade and foreign nationals. By using Swappler, you agree to accept such risks and that Swappler (and Swappler’s officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on Swappler. Please use caution, common sense, and practice safe buying and selling when using Swappler.
Other Resources
Swappler is not responsible for the availability of outside websites or resources linked to or referenced on the Site. Swappler does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that Swappler shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
8. Meetings
Users may arrange and attend online virtual meetings or in-person meetings (“Meetings”) with one or more individuals. Users are solely responsible for interactions with others. Users must comply with Swappler’s policies and acknowledge and agree to comply with the laws of the city, county and country in which the Meeting occurs. Additional eligibility requirements for a particular group or Meeting may be set by the group’s contact person. Swappler is not involved with user generated groups, the groups’ requirements, or the Meetings.
Swappler does not supervise or control the Meetings, user-initiated online or offline gatherings, or the interactions among and between users and other persons or companies. Users are solely responsible for interactions with others. Users understand that Swappler does not in any way screen its users. All users agree to exercise caution and good judgment in all interactions with others, particularly if meeting offline or in person.
Groups or User Fees: Some user-generated groups on Swappler may require or request that users pay fees in order to be a member of the group, participate in a promotion, or participate in Meetings. SWAPPLER IS NOT INVOLED IN THE TRANSACTIONS, THE PAYMENTS OR THEIR PROCESSING. THE PAYMENT DOES NOT GO TO SWAPPLER; THIS MONEY IS SEPARATE FROM ANY FEES OR CHARGES ASSESSED BY SWAPPLER, AND SWAPPLER HAS NO CONTROL OVER THE MONEY, THE USER-GENERATED GROUPS, PROMOTIONS, THE MEETINGS, OR THE LEADER OF THE GROUP IN CONNECTION WITH ITS USE. YOU ACKNOWLEDGE AND AGREE THAT SWAPPLER IS NEITHER INVOLVED NOR A PARTY IN ANY PAYMENT, TRANSACTION OR INTERACTION BETWEEN OR AMONG USER-GENERATED GROUPS, SWAPPLER USERS AND/OR THIRD PARTIES (together a “Third Party Transaction”), AND THAT YOU BEAR ALL RISK IN CONNECTION WITH YOUR THIRD PARTY TRANSACTIONS. Users should use common sense and be careful in deciding whether to contribute money.
9. Resolution of Disputes and Release
In the event a dispute arises between you and Swappler, please contact Swappler.
Should you have a dispute with one or more users, or an outside party, you release Swappler (and Swappler's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Swappler encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
Swappler, for the benefit of users, may try to help users resolve disputes. Swappler does so in Swappler’s sole discretion, and Swappler has no obligation to resolve disputes between users or between users and outside parties. To the extent that Swappler attempts to resolve a dispute, Swappler will do so in good faith based solely on Swappler’s policies. Swappler will not make judgments regarding legal issues or claims.
10. Swappler's Intellectual Property
SWAPPLER, and other Swappler graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Swappler Pty Ltd, in the Australia. and/or other countries. Swappler's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.
11. Access and Interference
Swappler may contain robot exclusion headers, which contain internal rules for software usage. Much of the information on Swappler is updated on a real-time basis and is proprietary or is licensed to Swappler by Swappler's users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access Swappler for any purpose without Swappler’s prior express written permission. Additionally, you agree that you will not:
1. Take any action that imposes, or may impose, in Swappler’s sole discretion, an unreasonable or disproportionately large load on Swappler’s infrastructure;
2. Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content, or other allowed uses as set out in the Swappler Swap and Store Guide from the Site without the prior expressed written permission of Swappler and the appropriate third party, as applicable;
3. Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
4. Bypass Swappler’s robot exclusion headers or other measures Swappler may use to prevent or restrict access to Swappler.
12. Breach
Without limiting any other remedies, Swappler may, without notice, and without refunding any fees, delay or immediately remove Content, warn Swappler’s community of a user’s actions, issue a warning a user, temporarily suspend a user, temporarily or indefinitely suspend a user’s account privileges, terminate a user’s account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:
Swappler suspects (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) a user has breached this Agreement, the Privacy Policy, the Swappler Swap and Store Guide, or other policy documents and community guidelines incorporated herein; Swappler is unable to verify or authenticate any of your personal information or Content; Or Swappler believes that a user is acting inconsistently with the letter or spirit of Swappler’s policies, has engaged in improper or fraudulent activity in connection with Swappler or the actions may cause legal liability or financial loss to Swappler's users or to Swappler.
13. Privacy
Except as provided in Swappler’s Privacy Policy Swappler will not sell or disclose your personal information (as defined in the Privacy Policy) to third parties without your explicit consent. Swappler stores and processes Content on computers located in the United States that are protected by physical as well as technological security.
14. No Warranty
SWAPPLER, SWAPPLER'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SWAPPLER'S SUPPLIERS PROVIDE SWAPPLER'S WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. SWAPPLER, SWAPPLER'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND SWAPPLER'S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM SWAPPLER SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
15. Liability Limit
IN NO EVENT SHALL SWAPPLER, AND (AS APPLICABLE) SWAPPLER'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SWAPPLER'S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, SWAPPLER’S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
SWAPPLER'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF SWAPPLER'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO SWAPPLER IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
16. Indemnity
YOU AGREE TO INDEMNIFY AND HOLD SWAPPLER AND (AS APPLICABLE) SWAPPLER'S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, 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 THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
17. No Guarantee
Swappler does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside Swappler’s control.
18. Legal Compliance
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of Swappler’s service and your listing, purchase, solicitation of offers to purchase, and sale of items.
19. Severability
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
20. No Agency
You and Swappler are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
21. Swappler Service
Swappler reserves the right to modify or terminate the Swappler service for any reason, without notice, at any time. Swappler reserves the right to alter these Terms of Use or other Site policies at any time. If the alterations constitute a material change to the Terms of Use, Swappler will notify you via email to the email address in your account. What constitutes a "material change" will be determined at Swappler's sole discretion, in good faith, and using common sense and reasonable judgment.
22. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the State of Victoria and disputes arising under this Agreement will be adjudicated by the courts of the State of Victoria, Australia.
23. Survival
Sections 3 (Fees and Services, Fees and Termination), 6 (Content, License), 7 (Information Control), 8 (Meetings, Groups or User Fees), 9 (Resolution of Dispute and Release), 10 (Swappler’s Intellectual Property), 11 (Access and Interference), 12 (Breach), 13 (Privacy), 14 (No Warranty), 15 (Liability Limit), 16 (Indemnity), 17 (No Guaranty), 19 (Severability), 20 (No Agency), 22 (Choice of Law) shall survive any termination or expiration of this Agreement.
24. Notices
Except as explicitly stated otherwise, any notices shall be given by postal mail to Swappler Attn: Legal Department; 38 Cambridge Street, Collingwood, Victoria, Australia (in the case of Swappler) or, in your case, to the email address you provide to Swappler (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Swappler may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Swappler. In such case, notice shall be deemed given three days after the date of mailing.
For issues with intellectual property, please provide the notice as specified in Swappler’s Copyright and Intellectual Property Policy.
25. Disclosures
The services hereunder are offered by Swappler Pty Ltd of 38 Cambridge Street Victoria, Australia.
