The Swaddle Swap - User Agreement

Introduction Welcome to The Swaddle Swap. By using The Swaddle Swap (including theswaddleswap.org and its related sites, services and tools), you agree to the following terms with The Swaddle Swap. This Agreement is effective on 17 September 2012, for all users, both new and returning. You accept this User Agreement by clicking the “RESERVE” button when scheduling a swap; accessing or using The Swaddle Swap’s sites, services, and tools; or as otherwise indicated on a specific site, service, or tool. Please be advised: This User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Limitation of Liability and Legal Disputes Sections below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate (see Legal Disputes, Section B ("Agreement to Arbitrate")). Unless you opt-out: (1) you will only be permitted to pursue claims against eBay on an individual basis, not as part of any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. Scope Before swapping, you agree that you will read and accept all of the terms in, and linked to, this User Agreement and The Swaddle Swap Privacy Policy. We strongly recommend that, as you read this User Agreement, you also access and read the linked information. By accepting this User Agreement, you agree that this User Agreement and Privacy Policy will apply whenever you use The Swaddle Swap sites or services. Some The Swaddle Swap sites, services, and tools may have additional or other terms, agreements, or policies that govern their availability and use. Your use of and access to such sites, services, and tools are subject to any and all terms, agreements, or policies applicable to them. Using The Swaddle Swap While using The Swaddle Swap sites, services and tools, you will not: violate any laws, third party rights or our policies; use our sites, services or tools if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from using our sites, services, or tools; interfere with any item listings; circumvent or manipulate our swapping process; post false, inaccurate, misleading, defamatory, or libelous content to The Swaddle Swap website or through The Swaddle Swap website (i.e. to Facebook); distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes; distribute viruses or any other technologies that may harm The Swaddle Swap, or the interests or property of The Swaddle Swap users; export or re-export any The Swaddle Swap tools except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions; copy, modify, or distribute rights or content from the The Swaddle Swap sites, services, or tools or The Swaddle Swap’s copyrights and trademarks; or harvest or otherwise collect information from The Swaddle Swap, without consent from The Swaddle Swap. Abusing The Swaddle Swap The Swaddle Swap and its of users (the "Community") work together to keep our sites, services, and tools working properly and the Community safe. Please report problems and policy violations to admin@theswaddleswap.org. Without limiting other remedies, we may, in our sole discretion, limit, suspend, or terminate our services, prohibit access to our sites, services, and tools, and their content, delay or remove content, and take technical and legal steps to keep users from using our sites, services, or tools, if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies. We also reserve the right to cancel swaps at anytime and for any reason, with or without notification. Fees and Services Joining The Swaddle Swap and swapping on listed items is free. We may charge fees for using other services, such as listing items. The fees we charge for using our services are listed on our website, which we may change from time to time. 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 sites. Unless otherwise stated, all fees are quoted in United States Dollars. You are responsible for paying all fees and applicable taxes associated with our sites, services, and tools with a valid payment method by the payment due date. 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.) In addition, you will be subject to late fees and we may suspend or restrict you from using our sites, services, and tools until full payment is made. The Swaddle Swap, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information The Swaddle Swap reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us at admin@theswaddleswap.org. If you wish to dispute the information a collection agency reported to a credit bureau, you must contact the collection agency directly. Authorization to Contact You; Recording Calls You authorize The Swaddle Swap, its affiliates, agents, volunteers, and independent contractors to contact you at any telephone number (including telephone numbers associated with mobile, cellular, wireless, or similar devices) or email address you provide to us or from which you place a call or emailed to us, or any telephone number or email address at which we reasonably believe we may reach you, using any means of communication, including, but not limited to, calls or text messages using an automatic telephone dialing system and/or prerecorded messages, even if you incur charges for receiving such communications. You understand and agree that The Swaddle Swap may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with The Swaddle Swap or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with The Swaddle Swap may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by The Swaddle Swap, and The Swaddle Swap does not guarantee that recordings of any particular telephone calls will be retained or retrievable. Content When providing us with content or posting content on The Swaddle Swap sites, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights you have in the content, in any media known now or in the future. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code We respond to notices of alleged copyright infringement as required by the United States Digital Millennium Copyright Act. Limitation of Liability We try to keep The Swaddle Swap and its sites, services, and tools safe, secure, and functioning properly. You acknowledge that we cannot guarantee the continuous operation of or access to our sites, services, or tools. You further acknowledge that operation of and access to our sites, services, or tools may be interfered with as a result of technical issues or numerous factors outside of our control. You agree that you are making use of our sites, services, and tools at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, to the extent permitted by applicable law, we are not liable, and you agree not to hold The Swaddle Swap responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from: Your use of or your inability to use our sites, services and tools; Delays or disruptions in our sites, services, or tools; Viruses or other malicious software obtained by accessing our sites, services, or tools or any site, services, or tool linked to our sites, services, or tools; Glitches, bugs, errors, or inaccuracies of any kind in our sites, services, and tools or in the information and graphics obtained from them; The content, actions, or inactions of third parties, including items listed using our sites, services, or tools or the destruction of allegedly fake items; A suspension or other action taken with respect to your usage of The Swaddle Swap website; Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. Release If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) 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. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. Access and Interference The Swaddle Swap’s sites contain robot exclusion headers. Information on our sites is subject to constant updates and changes. Much of the information on the sites is also proprietary or is licensed to The Swaddle Swap by our users or third parties. You agree that you will not use any robot, spider, scraper, or other automated means to access our sites for any purpose without our express handwritten permission. Additionally, you agree that you will not: take any action that imposes or may impose (to be determined 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 our sites, services, or tools without the prior express written permission of The Swaddle Swap and the appropriate third party, as applicable; interfere or attempt to interfere with the proper working of our sites, services, or tools, or any activities conducted on or with our sites, services, or tools; or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to our sites. Swapping Conditions You are responsible for reading the full item listing. Unless otherwise stated, by making a reservation for an item on The Swaddle Swap, you are committing to swap for this item. If you make a commitment to swap, you enter into a legally binding contract with The Swaddle Swap and are obligated to swap for the item unless The Swaddle Swap relieves you of the obligation. Privacy We do not sell or rent your personal information to third parties for their marketing purposes without your consent. We use your information only as described in The Swaddle Swap Privacy Policy. We view protection of users' privacy as a very important Community principle. We store and process your information on computers located in the United States and other international locations that are protected by physical as well as technological security devices. If you object to your information being transferred or used in this way please do not use our services. Indemnity You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) 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 User Agreement, your improper use of The Swaddle Swap’s sites, services, or tools, and/or your violation of any law or the rights of a third party. No Agency No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this User Agreement. Notices Except as explicitly stated otherwise, legal notices shall be served on The Swaddle Swap’s admin@theswaddleswap.org email address or to the email address you have registered with us. Notice to you shall be deemed given 24 hours after the email is sent. Legal Disputes You and The Swaddle Swap agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Legal Disputes Section. Please read this Section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved. A. Applicable Law You agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and eBay, except as otherwise stated in this User Agreement. B. Agreement to Arbitrate You and The Swaddle Swap each agree that any and all disputes or claims that have arisen or may arise between you and The Swaddle Swap shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate. Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AND THE SWADDLE SWAP AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EBAY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER THE SWADDLE SWAP USERS. Arbitration Procedures Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator also must follow the terms of this User Agreement as a court would. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website at http://www.adr.org. The arbitration shall be held in Ventura County. The Swaddle Swap may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and The Swaddle Swap’s subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or The Swaddle Swap, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different The Swaddle Swap users, but is bound by rulings in prior arbitrations involving the same The Swaddle Swap user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Costs of Arbitration Payment of all filing, administration and arbitrator fees will be paid by you, as applicable by law. Severability With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief") is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply. Opt-Out Procedure You cannot choose to reject this Agreement to Arbitrate. If you do not agree do not use The Swaddle Swap’s services. Future Changes to the Agreement to Arbitrate Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or website link provided herein) in the future, that change will still apply to any claim of which you provided The Swaddle Swap with written notice prior to the effective date of the change. Moreover, if we seek to terminate the Agreement to Arbitrate as included in the User Agreement, any such termination shall be effective immediately after the version of the User Agreement not containing the Agreement to Arbitrate is posted to http://www.theswaddleswap.org, and shall be effective as to any claim of which you provided The Swaddle Swap with written notice prior to the date of termination. C. Judicial Forum for Legal Disputes Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and The Swaddle Swap must be resolved exclusively by a state or federal court located in Ventura County, California. You and The Swaddle Swap agree to submit to the personal jurisdiction of the courts located within Ventura County, California for the purpose of litigating all such claims or disputes. Additional Terms You agree to abide by all policies posted on our sites. Such policies (including, but not limited to the following) are part of this User Agreement and provide additional terms and conditions related to specific services offered on our sites: Prohibited and Restricted Items - http://theswaddleswap.org/index.html The policies posted on our sites may be changed from time to time. Changes take effect when we post them on The Swaddle Swap sites. When using particular The Swaddle Swap services or tools, you are subject to any posted policies or rules applicable to services or tools you use, which may be posted from time to time. All such policies or rules are hereby incorporated into this User Agreement. General The Swaddle Swap is headquartered in Ventura, California. We may amend this User Agreement at any time by posting the amended terms on www.theswaddleswap.org. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. Except as stated otherwise in this User Agreement or elsewhere, all amended terms shall automatically be effective immediately after they are initially posted. This User Agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, a "writing" does not include an email message and a signature does not include an electronic signature. This User Agreement (including incorporated policies and rules) sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The following Sections survive any termination of this User Agreement: Fees and Services, Release, Content, Limitation of Liability, Indemnity and Legal Disputes. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.