Terms and Conditions
MEMBER AGREEMENT.
1. ACCEPTANCE OF TERMS AND CONDITIONS
This is a legal agreement ("Agreement") between you, the Member ("Member") and the operator of Swapster.com, Swapster LLC, or assignee ("Swapster.com"), with a current principal place of business at 1002 Cavan Dr, Apopka, FL 32703. BY CHECKING THE APPROPRIATE BOX ON THE REGISTRATION PAGE, MEMBER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. This Agreement governs the access and use of services provided by or through the Swapster.com website ("Service"). If Member does not agree to the terms and conditions of this Agreement, do not check the appropriate box on the registration page and do not access or use the Service. All questions concerning this Agreement must be directed to: Swapster.com, 1002 Cavan Dr, Apopka, FL 32703.
By accepting the terms and conditions of this Agreement, Member represents, warrants and covenants that (a) Member is 18 years old or older or has been signed up by an adult; (b) Member or adult signing up for a member under the age of 18 years old, is capable of entering into a legally binding agreement; (c) Member is a resident of the Continental U.S.; (d) Member will use the Service only for personal use and not for commercial use, and (e) Member will not transfer membership account or Member ID's to others. Notwithstanding anything to the contrary, Swapster.com reserves the right to cancel, suspend or refuse access to the Service to anyone at its sole discretion.
2. OTHER AGREEMENTS
This Agreement includes the following policies and documents also found on this site:
- Privacy Policy
- Swapster.com Fees and Credits Policy
3. CHANGES, ETC.
Swapster.com shall have the right, at its sole discretion, to change, modify, add or remove any portion of this Agreement or any other matter relating to the Service, including fees and transaction rules, in whole or in part, at any time by posting notification on the Service. The changes will become effective, and shall be deemed accepted by Member, after 30 days of initial posting by Swapster.com and shall apply on a going-forward basis with respect to transactions, listings and other activities commenced thereafter. Alternatively, Swapster.com may change, modify, add or remove any portion of this Agreement or any other matter relating to the Service, including fees and transaction rules, in whole or in part, at any time with notice to the Member at the e-mail address for notices described in this Agreement. The changes will become effective, and shall be deemed accepted by Member, immediately upon sending the e-mail and shall apply on a going-forward basis with respect to transactions, listings and other activities commenced thereafter. In the event that Member does not agree with any modifications described in this Section 3, Member must terminate its account as set forth in Section 8 below, which shall be Member's sole and exclusive remedy.
4. MEMBERSHIPS AND MEMBER'S RESPONSIBILITY.
Swapster.com is a consumer Internet site to facilitate the exchange of entertainment media between the Members of Swapster.com. To become a Member of Swapster.com, the prospective member must register on the site by giving a valid email address, credit card, and postal address. All Members must currently reside in the continental United States and must accept the terms and condition of membership. It is understood that a non-cash exchange currency issued by Swapster.com ("Swapster Points") is required in order to exchange on the Service.
In return for exchanging goods, successfully and as represented, the Member who sends or proposes to send goods ("Seller") to a Member who receives or proposes to receive goods ("Buyer") will receive the number of Points which the Buyer agreed to give for those goods. Swapster.com is not a bank. Accounts are not FDIC Insured. Swapster Points may only be redeemed for items available for exchanging. Member and Swapster.com each acknowledge and agree that Swapster Points are not bank deposits, legal tender, securities or commodities, may not be redeemed for cash, and have no value outside of Swapster.com. In no event shall Swapster.com be required to refund, redeem, or pay any amounts to Member for any Swapster Points, or allow conversion or liquidation of Swapster Points. Notwithstanding the foregoing, Swapster.com may, from time to time, offer special promotions to Members whereby Swapster.com may, at its sole discretion, provide Swapster Points to Members. Swapster Points are transferable between Members, however any such transactions are agreements made between Members and Swapster shall not be held accountable for disputes between Members.
When Member requests to exchange an item, Swapster Points may be immediately deducted from Member's account as required for the transaction. When Member exchanges away an item, Swapster Points may be passed to Member's account subject to any applicable restrictions.
Member expressly understands that Swapster.com offers no assurances or guarantee that products will be available for the Member to exchange using Swapster Points; Member expressly assumes such risk.
Member agrees that: (i) Swapster.com does not guarantee that Member will be satisfied with selection of, or prices for, products or services available on the Service; (ii) Swapster.com does not take responsibility for, and shall not be liable for, any act or omission of Swapster.com which does not constitute gross negligence or willful misconduct on the part of Swapster.com and, in no event, shall be responsible or liable for any act or omission of any Member or other third party for any losses, costs, damages or liabilities arising from any of the foregoing.
Swapster.com shall have the right, but not the obligation, in its sole discretion to: (i) restrict use of Swapster Points Member receives for a transaction for a period of time after the completion of the transaction and thereafter pending resolution of any dispute regarding the transaction; (ii) require escrow, vesting or other procedures before Member can use Swapster Points stored in Member's account; (iii) cancel, freeze and/or otherwise restrict Member's account or the use of Swapster Points in Member's account for breach of this Agreement, an investigation of Member's account by a government or other authority or default by Member upon any obligation to Swapster.com ; or (iv) charge Member's credit card or otherwise charge Member for any damages resulting from a breach of this Agreement; such breaches may include, without limitation, fraudulent activity associated with the Service.
No individual is permitted to have more than one single account at any time. No more than two accounts are permitted per address or household, and Swapster has the right to limit a household to one account when it deems it necessary to protect its users from fraud, or the risk of fraud.
Accounts must be registered only by the individual seeking membership. Registration of accounts in a name other than the registrant's, fictitious or real, is expressly prohibited. Such use constitutes fraud and may give rise to criminal prosecution and substantial damages. Swapster prosecutes fraud to the fullest extent of the law.
Swapster.com may at its discretion award Swapster Points for, among other things, listing items for exchange. Swapster.com may in its sole discretion take such Swapster Points away from Member at any time with or without notice. Member shall not list items which Member does not own, have in Member's possession and/or intend to make available for exchange. Swapster.com may at its discretion, by mail, email, postings within Member's account or other reasonable means, provide Member a statement detailing Member's transactions and account balance. Thirty (30) days after the date of such statement, the statement shall be deemed accepted by Member unless Member has notified Swapster.com by mail in writing to the address identified in Section 17 that Member disputes the accuracy of the statement.
5. FEES AND CHARGES.
Swapster.com's current fees and charges are described in the Swapster.com Fees and Credits Policy. However, Swapster.com reserves the right to change all charges and fees for services (including new or modified products and services) and to change its fees, costs and/or charges at any time for any reason. Swapster.com will notify members by their email address of record on their account prior to any change.
From time to time Swapster.com may, in its sole discretion, make special offers and promotions, such as reduced fees, discounts, incentives or other benefits ("Promotions") without creating any obligation on the part of Swapster.com other than as expressly set forth in such Promotions, including, without limitation, any obligation to continue to offer such Promotions on an ongoing basis.
Unless otherwise expressly stated by Swapster.com, all payments to Swapster.com shall be non-refundable. Failure of a Buyer or Seller to complete or fulfill a transaction with Member, dissatisfaction with a transaction, fraud and other disputes regarding transactions shall not entitle Member to a refund of any amount paid to Swapster.com. Swapster.com will replenish a Member's Swapster Points in an exchange in which the Member is not satisfied.
Unless otherwise stated, all payment amounts are quoted in U.S. Dollars. Member is responsible for paying all applicable fees, charges and taxes (including, if applicable, sales and use taxes) associated with using the Service.
6. RIGHT OF SWAPSTER.COM AND/OR AFFILIATES TO PARTICIPATE.
Swapster.com or its affiliates may offer new or additional services through the Service from time to time. Member's use of those services may be subject to additional terms and conditions, or rules of use, which Member must comply with. Provided that those terms or rules are provided to Member on the Swapster.com Service in an appropriate manner (as determined by Swapster.com in its reasonable discretion), any failure to comply with a material provision of the terms or rules governing those services shall constitute a breach of this Agreement and entitle Swapster.com to exercise all applicable rights and remedies.
7. SWAPSTER.COM AS A VENUE
The Service acts as a venue to facilitate the listing of goods by Sellers wishing to exchange goods in consideration for the receipt of Points and the acquiring of such goods in return for the exchange of Points by Buyers. Member acknowledges and agrees that Member's exchange of goods for Points on the Service is a transaction between the respective Seller and Buyer and not with Swapster.com. Swapster.com is not a party to any transaction on the Service. Swapster.com shall not be responsible for, and does not control, the quality, safety or legality of the items listed, the truth or accuracy of the listings, the ability of Sellers to dispose of the items, the ability of Buyers to acquire items, or any other matter which is not expressly set forth in this Agreement. Swapster.com shall not be responsible for, and does not control, whether or not Seller will complete the exchange of items they offer. Consequently, Swapster.com does 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.
Swapster.com shall have no responsibility to, and does not, investigate the background of, or confirm the identity of, any Member. A Member-initiated feedback system may be available on the Service to help Member evaluate other Members. Member acknowledges, however, that such feedback represents solely the opinion of other Members and is not an opinion, representation, or warranty by Swapster.com.
7.1. NO ENDORSEMENT OF CONTENT OR LINKED RESOURCES BY SWAPSTER.COM.
Swapster.com does not represent or endorse the accuracy, reliability, integrity or legality of any advice, opinion, offer, proposal, statement, listing, data or other information (collectively, "Content") displayed or distributed through the Service. Some Content accessible on the Swapster.com site may be believed to be harmful, offensive, or inaccurate, and in some cases may be mislabeled or deceptively labeled. Swapster.com hereby disclaims any liability for any Content, including, but not limited to, any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of or reliance on any Content posted, emailed or otherwise transmitted via the Service. Swapster.com shall have no obligation to review Content posted to the Service by Members or by Swapster.com. Swapster.com shall have the right, but not the obligation, in its sole discretion, to correct any errors or omissions in any portion of the Service or to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, modify, refuse to post or remove any Content, in whole or in part, that in Swapster.com's sole discretion is objectionable or in violation of this Agreement.
Links and pointers to the other related World Wide Web Internet sites, resources, and sponsors of the Service ("Linked Resources") shall not constitute an endorsement by Swapster.com of the Linked Resources. Swapster.com 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 availability, use of or reliance on any Linked Resources.
7.2. DISPUTES
Swapster.com is not a party to, and shall not be involved in or responsible for, transactions, agreements and/or disputes between Members, including without limitation those arising from, related to or in connection with the Service ("Dispute"). In the event of a Dispute, Member agrees to release, and does hereby release, Swapster.com (and its officers, directors, agents, contractors and employees) from 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. Member waives 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."
Member agrees that it shall not involve Swapster.com in any Dispute or litigation arising out of or related to any transaction, agreement or arrangement with any Buyer, Seller, or other Member or third party in connection with the Service. If Member nonetheless attempts to do so, (i) Member shall pay all costs and attorneys' fees of Swapster.com and shall provide indemnification as set forth in Section 14 below, and (ii) the jurisdiction for any such Dispute or litigation shall be limited as set forth in Sections 18 and/or 21.1 (as applicable) below.
8. TRANSACTIONS AND TERMINATION.
If Member Buys an item, Seller agrees to ship the item within 48 hours of the sale date and pay the appropriate postage charges.
If Member lists an item for exchange, Member agrees to accept offers and exchange the item according to the terms of the listing. Without limiting the foregoing, Member makes a firm commitment to exchange and authorizes Swapster.com to automatically indicate acceptance where a purchaser has clicked the Exchange button for the item.
For all items listed by the Member, Member represents, warrants and covenants to Swapster.com that: (i) all information Member is prompted to provide about an item Member lists ("Item Information") shall be accurate and complete and shall accurately represent the condition of the item at the expected and actual sale date; (ii) Member shall promptly update Item Information should it become inaccurate, incomplete or misleading; (iii) items, including back cover and front insert, if so listed, provided for exchange on the Service shall be legal originals ; and (iv) no item provided for exchange shall consist of adult materials, obscene materials or pornographic. Swapster.com reserves the right, at its sole discretion, to prohibit listing, sales and purchase of any items or categories of items and may remove items from listing at any time without notice.
All Exchange transactions must be between Members who are located within the Continental U.S., and no packages will be sent outside of the Continental U.S.
Member may close Member's account by going to the appropriate account section on the website or sending an email to team@Swapster.com. Swapster.com may, in its sole discretion without liability to Member or any third party, terminate Member's account for any reason, including without limitation inactivity or violation of this Agreement or other rules and policies established by Swapster.com. Upon termination of Member's account, Member shall remain liable for all charges, fees, commitments and obligations incurred or accrued by Member. Upon termination, Swapster.com shall have the right to delete any Content, listings or other information regarding Member's account, prohibit Member's access to the account, including without limitation by deactivating Member's password, and refuse Member future access to the Service.
In no event shall Swapster.com be required to refund, redeem, or pay amounts to Member for any Points or incomplete transactions.
9. MEMBER INFORMATION
Member shall be responsible for maintaining the confidentiality of its Member account and password and shall be responsible for any and all transactions by Members or other third parties given access to such account or password and any and all consequences of use or misuse of such account and password. Member shall indemnify Swapster.com for any violation of this Section. Member agrees to notify Swapster.com immediately of any unauthorized use of any password or account or any other breach of security regarding the Service of which Member has knowledge.
Member agrees not to use as a member name any words, phrases, or variations of the same which are unlawful, threatening, abusive, harmful, libelous, defamatory, harassing, tortuous, hateful, racially, ethnically or otherwise objectionable, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent. Without limiting any of Swapster.com's other rights, Swapster.com may terminate the membership without notice of any person who violates the foregoing, or may change the member name without the consent of the Member.
Member agrees to provide current, complete and accurate information ("Registration Information") during the process of registration with, and use of, the Service and to update such information to keep it current, complete and accurate. Swapster.com shall have the right to use the Registration Information for such uses as reasonably required or advisable for the Service and as set forth in Swapster.com's Privacy Policy. Member agrees that Swapster.com shall have the right to remove from the Service or take any other action with respect to the Registration Information deemed appropriate in Swapster.com's sole discretion, including but not limited to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Swapster.com, its Members and the public.
Where Member is a Buyer, Member hereby consents to the disclosure of Member's name and address to the Seller. Buyer and Seller agree to respond to all communications from Swapster.com where a response is requested by Swapster.com or reasonably appropriate in light of the context of the communication within 48 hours of receiving the same.
10. ACCESS AND INTERFACE.
Swapster.com shall have the right to change, suspend or discontinue any aspect of the Service at any time, including hours of operation and availability of any Service feature, database or Content without notice and without liability. Swapster.com shall have the right to impose limits on certain features and services or restrict access to parts or all of the Service without notice and without liability.
Swapster.com shall have the right to establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that listings, email messages, message board postings or other uploaded Content will be retained by the Service, the maximum number or size of listings Member may post on the Service, and the maximum number of times (and the maximum duration for which) Member may access the Service in a given period of time.
Swapster.com does not warrant that the functions contained in the Service or any materials or Content contained therein will be uninterrupted or error free, that defects will be corrected, or that the Service is free of viruses or other harmful components.
Swapster.com shall not be responsible for any service interruptions, including, but not limited to, power outages, system shut downs, system failures or other interruptions that may affect the receipt, processing, acceptance or completion of listings and/or transactions on the Service.
The Member represents, warrants and covenants that Member shall not upload, post or transmit to, distribute or otherwise publish through the Service any materials (i) which restrict or inhibit any other Member from using and enjoying the Service; (ii) which are unlawful, threatening, abusive, harmful, libelous, defamatory, harassing, tortuous, hateful, racially, ethnically or otherwise objectionable, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent; (iii) which constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law; (iv) which violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (v) which contain a virus or other harmful component, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (vi) for which Member does not have all necessary rights and licenses to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information); and (vii) which are unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of unauthorized solicitation or (viii) which constitute or contain false or misleading indications of origin or statements of fact.
Member represents, warrants and covenants that it shall not (i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (ii) gain unauthorized access to other computer systems through the Service; (iii) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other Member's ability to engage in normal transactions; (iv) harass other Members or third parties; (v) collect or store personal data about other Members other than as is strictly necessary to use the Service; or (vi) impersonate or otherwise misrepresent any person or entity, including, but not limited to, a Swapster official, falsely state or otherwise misrepresent Member's affiliation with a person or entity or conceal the true identity of the parties in interest for purposes of evading or circumventing any applicable law, regulation ordinance or for any other reason.
Member shall hold confidential and shall not disclose, transmit, use or otherwise exploit personal or company names, addresses, telephone numbers, email addresses, listings, fees and pricing information or any other information regarding, or provided by, other Members in connection with the Service, except as strictly necessary to conduct and fulfill bona fide exchanges through the Service solely on Member's own behalf in accordance with this Agreement. Without limiting the foregoing, in no event shall Member collect, store, extract, sell, transfer or disclose any listing or compilation of customers or Members in any way relating to the Service.
11. CONSENT TO RECEIVE ELECTRONIC MAIL
Consent to receive electronic mail is based on Member's confirmation (opt-in) for specific mail lists. Initial consent is done at time of Member registration, but can be changed on the website under the appropriate account section. See Privacy Policy for more information on this matter.
12. GROUNDS AND REMEDIES FOR BREACH.
Without limiting other remedies, Swapster.com may limit Member's activity, immediately remove Member's item listings or other Member-posted Content, warn, issue a warning, temporarily suspend, indefinitely suspend or terminate Member's membership and refuse to provide the Service or any service to Member if: (i) Member breaches this Agreement or the documents it incorporates by reference; (ii) Swapster.com is unable to verify or authenticate any information Member provides; or (iii) Swapster.com believe that Member's actions may cause financial loss or legal liability for Member, other Members or third parties, or Swapster.com.
13. BRIEF DESCRIPTION OF PRIVACY POLICY
Swapster.com is committed to protecting Member's privacy while on Swapster.com. We do not sell or rent Member's personal information to third parties for their marketing purposes without the Member's explicit consent and we only use Member's information as described in the Privacy Policy. We view protection of Members' privacy as a very important community principle. Swapster.com understands clearly that Members and their information are important assets. Swapster.com stores and processes Members' information on computers located in the United States that are protected by physical as well as technological security devices. However, Swapster.com offers no assurances that its procedures will in fact protect the security of Member's personal information. If Member objects to its Information being transferred or used in this way, please do not use the Service.
14. INDEMNITY
Member shall indemnify, defend and hold harmless Swapster.com, and all of its parents, subsidiaries, affiliates, officers, directors, owners, agents, representatives co-branders or other third parties utilized in connection with the Service, employees, information providers, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liability, costs, losses, damages, claims and demands, including without limitation attorneys fees and costs incurred by the Indemnified Parties, arising out of or related to (i) Member's use of the Service including listing and exchanging goods and providing Content; (ii) any breach or non-compliance by Member of this Agreement, any of Swapster.com's rules or policies, or Member's representations, warranties and covenants contained herein, including but not limited to Sections 4 (Memberships and Member's Responsibility), 5 (Fees and Charges) and 9 (Member Information); (iii) any dispute or litigation between an Indemnified Party and a third party caused by Member's actions; and (iv) Member's negligence or violation or alleged violation of any rights of another. Member shall fully cooperate with the Indemnified Party and provide all assistance reasonably requested by the Indemnified Party in the defense and settlement of any claim. The Indemnified Party shall have the right at its own expense, but not the obligation, to assume the exclusive defense and control of any matter subject to indemnification by Member, and Member shall not in any event settle any matter without the written consent of the Indemnified Party.
15. COMPLIANCE WITH LAWS
Member, and not Swapster.com, shall be responsible for compliance with all laws, regulations and ordinances connected with the Member's listing, exchanging, and other use of, the Service. Member shall not list or exchange items that are illegal using the Service. Member must provide all required and appropriate information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, "Information and Actions") in connection with the Member's listing and exchanging on the Service. If the Service does not provide adequate facility or features for Member to provide such Information and Actions, then the Member shall not use the Service to list or exchange the respective items.
Member represents and warrants that Member is a resident of the Continental U.S. and is over the age of 18 years old or has been signed up by an adult, 18 years or older in age.
Note that various U.S. legal requirements and limitations may apply to transactions involving foreign nationals or foreign legal entities, including those physically located within the United States, underage persons, and persons acting under false pretenses, and compliance with such requirements and limitations is the sole responsibility of the Member.
Member agrees not to intentionally or unintentionally violate any applicable laws or regulations promulgated by any state or federal regulations or laws.
16. NO AGENCY
Member and Swapster.com are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
17. NOTICES
Any notice, request, demand, waiver, approval or other communication which is required or permitted to be given hereunder shall be made by mail, email, postings within Member's account or other reasonable means. Swapster.com may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the Service. Notice to Swapster.com may be made by mail to: Swapster Services, 1002 Cavan Dr, Apopka, FL 32703, or such other address as Swapster.com may provide for such purpose.
18. DISPUTE RESOLUTION
Except with respect to an action for injunctive relief, Member and Swapster.com agree that any dispute or claim arising out of or related to the Service or this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration in San Jose, California under the American Arbitration Association Arbitration Rules by one arbitrator appointed in accordance with said Rules. The proceedings shall be conducted and all evidence shall be offered in the English language. Member and Swapster.com agree that any claim against the other must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary; otherwise such claim will be barred forever. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party.
19. DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, IS PROVIDED ON AN "AS IS" "WHERE IS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, Swapster.COM AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE SERVICE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SERVICE, FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICE OR ANY LINKED SITE. Swapster.COM AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IT IS SOLELY MEMBER'S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, USEFULNESS OR VALIDITY OF ALL OPINIONS, ADVICE, SERVICE, PROMOTIONS, LISTINGS, ADVERTISEMENTS, AWARDS, PRIZES OR OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL GOODS AND SERVICES, OFFERED ON THE SERVICE. Swapster..COM MAKES NO ASSURANCES THAT MEMBER WILL BE ABLE TO EXCHANGE ANY ITEMS, THAT ITEMS WHICH MEMBER WISHES TO EXCHANGE FOR WILL BE AVAILABLE, THAT OTHER MEMBERS WILL WANT TO EXCHANGE FOR ITEMS OWNED BY MEMBER, OR ANY OTHER MATTER. A MEMBER'S SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR ANY MATTER RELATING THERETO IS TO STOP USING THE SERVICE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATIONS CONTAINED IN THIS AGREEMENT MAY NOT APPLY TO MEMBER.
20. LIMITATIONS OF LIABILITY
SWAPSTER.COM SHALL NOT BE RESPONSIBLE OR LIABLE TO MEMBER OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH SWAPSTER.COM OR THE SERVICE, OR USE THEREOF, OR ANY OF THE DATA OR OTHER MATERIALS TRANSMITTED THROUGH OR RESIDING ON THE SERVICE OR ANY GOODS, SERVICES, OR INFORMATION PURCHASED, RECEIVED OR SOLD BY WAY OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF SWAPSTER.COM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE OR LOSS.
IN NO EVENT SHALL SWAPSTER.COM'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICE EXCEED THE AMOUNT OF FEES MEMBER HAS PAID TO SWAPSTER.COM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING ACCRUAL OF THE RESPECTIVE CLAIM.
THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
21. GENERAL
21.1 Governing Law. This Agreement shall be governed by the laws of the State of California (other than the law of conflicts) applicable to contracts wholly entered into and executed within that State. The exclusive venue for any lawsuits permitted by this Agreement shall be an appropriate California State Court or a United States District Court for or located in the State of California. Swapster.com and Members hereby submit themselves to the jurisdiction of said courts and to arbitration as otherwise provided in this Agreement and consent to service by certified or registered mail, and any other means permitted by law.
21.2 Invalidity of Provisions. If any of the provisions of this Agreement are held to be illegal, invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect insofar as the purpose of this Agreement is not destroyed by the invalidity or illegality.
21.3 Severability. If any provision of this Agreement or any application thereof is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of other provisions of this Agreement or of any other application of such provision shall not be affected thereby.
21.4 Force Majeure. Swapster.com shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, labor stoppage, war or military hostilities, disruption of the Internet, or inability of carriers to make scheduled deliveries, and any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event; provided, however, that if any such force majeure event continues for thirty (30) days or more, Member may terminate this Agreement upon ten (10) days advance written notice to Swapster.com.
21.5 Assignment. Member shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without the prior written approval of Swapster.com and any such attempted assignment shall be void. Swapster.com shall have the right to assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent of or notice to Member. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
21.6 Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
21.7 No Waiver. The failure of any party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
21.8 Survival. Sections 7.2, 11, 14, 15, 16, 17, 18, 19, 20 and 21, and a Member's obligation to pay Swapster.com and any third party any fees, costs or other charges due, shall survive any termination of the Service, Member's right to use the Service, and/or this Agreement.
21.9 Entire Agreement. This Agreement, and the other items expressly referenced herein, constitutes the entire agreement between Swapster.com and Member with respect to Member's use of the Service.
BY CHECKING THE AGREE TO TERMS OF SERVICE BOX, MEMBER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
