SWAPPY TERMS AND CONDITIONS AND MEMBER AGREEMENT
THIS SWAPPY TERMS AND CONDITIONS & MEMBER AGREEMENT is entered into this day (September 15 of 2015), between 9589945 Canada Inc. (“SWAPPY”, “We” or “Us”) and you, whether you use SWAPPY, our Site (as defined below) or our Services (as defined below) generally as a member/user, as a seller (including vendors, appraisers, merchants, dealers, trustees, bailiffs, auction houses and auctioneers) (“Seller”) or as a buyer (“Buyer”) (referred to, globally in those various capacities, as “You”)(collectively, We and You being the “Parties”, and each a “Party” hereunder)(our “Agreement”). This Agreement is comprised of these terms and conditions as well as any other terms, conditions, undertaking, rules or policies included on or referred to on the www.swappy.com site (including any replacement or evolution thereof)(collectively, the “Site”) or otherwise adopted by SWAPPY from time to time and referred to within the Site or this Agreement, including any amendment or restatement thereto, or in any communication required or permitted to be given hereunder. Where the word “include”, “includes” or “including” is used in this Agreement, it means “include”, “includes” or “including”, in each case, “without limitation”.
TO REVIEW AND AGREE TO THIS AGREEMENT IN FRENCH, PLEASE CLICK HERE.
BEFORE YOU READ ON, PLEASE NOTE THAT AT THIS TIME, SWAPPY ONLY ACCEPTS SELLERS RESIDING IN AND SELLING FROM CANADA, THE UNITIED STATES AND/OR CHINA, AND BUYERS RESIDING IN AND BUYING FROM CANADA. IF YOU DO NOT QUALIFY IN ONE OF THESE CAPACITIES, YOU CANNOT USE OUR SERVICES AT PRESENT, BUT PLEASE VISIT US LATER THIS YEAR WHEN WE HAVE EXPANDED THE JURISDICTIONS FROM WHICH WE PLAN TO ACCEPT CUSTOMERS.
You must also understand that SWAPPY uses and relies upon numerous third party services providers, business services and subcontractors for various aspects of enabling the Services (including in relation to infrastructure, application and data hosting in the United States), including Amazon Web Services, AddThis and Fresh Desk (“Third Party Providers”). As such, and while we think we have used good judgment in selecting these Third Party Providers, Your use of our Site and Services is and remains subject to any all dependencies, particularities, vulnerabilities, terms and conditions, practices (including as to data and information collection and use) and other aspects specific to or required or imposed by any such Third Party Providers, and Your rights, recourses and remedies against Us are not only limited as per the terms and conditions of this Agreement, but are also further limited as per any relevant and more restricted or limited terms and conditions specific to or required or imposed by such Third Party Providers. It is Your responsibility to review these terms and conditions on the applicable web pages of the Third Party Providers and to decide for yourself if you prefer not to use our Services as a result.
BY CLICKING AN “ENTER”, “I AGREE”, “I ACCEPT” OR ANY OTHER SIMILAR ICON OR BUTTON WHEN PROMPTED TO DO SO AT THE TIME OF JOINING SWAPPY OR AT ANY TIME THEREAFTER, OR BY ACTUALLY SIMPLY ACCESSING OR OTHERWISE USING THE SITE, SWAPPY OUR ANY SERVICES, YOU ARE AND SHALL BE DEEMED TO HAVE IRREVOCABLY AGREED TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ANY AMENDMENTS OR RESTATEMENTS THERETO. BEFORE USING SERVICES, YOU MUST THE AGREEMENT CAREFULLY. BY ACCESSING OR USING SWAPPY, THE SITE OR ANY SERVICES, YOU WARRANT THAT YOU ARE FULLY EMANCIPATED AND HAVE THE AGE OF MAJORITY IN YOUR JURISDICTION AND ARE CAPABLE OF FORMING LEGALLY BINDING CONTRACTS, AND YOU AGREE TO BE LEGALLY BOUND AND ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS DESCRIBED ABOVE. IF YOU DO NOT HAVE MAJORITY AGE IN YOUR JURISDICTION FOR ALL PURPOSES, OR OTHERWISE DO NOT HAVE FULL LEGAL CAPACITY, OR IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, DO NOT USE OR ACCESS SWAPPY, THE SITE OR ANY OF THE SERVICES.
A. JOINING SWAPPY – YOUR USERNAME AND ACCOUNT
In joining SWAPPY, You covenant not to use a username that is offensive, inappropriate, illegal or otherwise contrary to this Agreement or applicable laws. Also, since we do not want to collect, handle, use, store or otherwise deal with personal information unless we absolutely have to (in which case we will handle same in accordance with this Agreement), it is Your strict and sole responsibility to insure that Your username will not contain your full individual name or information linked to, associated with or traceable to You as an individual or that might disclose Your personal identity or enable other members to identify You, and we will assume that You comply with this requirement. While you are free to use any user name that isn’t offensive, inappropriate, illegal or otherwise contrary to the Agreement. We therefore recommend that You use a neutral and anonymous username both for the good and privacy of You and others. Any and all notices, emails and communications to be sent by SWAPPY to You shall be sent via email at the email address You provided as part of Your onboarding. You are responsible for keeping Your account information current and truthful and for providing Us any new or alternate email address as You may elect to use in the future in replacement of the email address originally provided. Also, since we do not want to collect, handle, use, store or otherwise deal with any personal information unless we absolutely have to (in which case we will handle same in accordance with this Agreement), it is Your strict and sole responsibility to insure that Your email address will not contain your full personal name or information linked to, associated with or traceable to You that might disclose Your individual identity or enable other members to identify You as an individual, and we will assume that You comply with this requirement. You represent and warrant that You will: (i) provide always current, true, accurate and complete information as required for registration or use of the Services; and (ii) maintain and promptly update any such required information at all times. You agree not to use or access any Services by any means other than through Your account. You are solely responsible for maintaining the confidentiality of Your password and of Your account, and You are fully responsible for all activities that occur under Your password or account, including in relation to any purchase and sale transaction and in relation to any and all costs and fees payable hereunder as a result of the use of any Services by You or by or through Your account. You shall not disclose Your password or account information to any third party without the prior written consent of SWAPPY. You agree that you will not maintain multiple accounts with Us without our prior written consent.
B. PRIVACY, CONFIDENTIALITY AND USE AND DISCLOSURE OF YOUR INFORMATION
C. SWAPPY IS A SERVICE
Simply stated, any activities, information, content, data, games, services, assistance, support, functionalities or other features or benefits provided by Us to You, whether now or in the future, including through the Site, represent collectively, our “Services”. As an example, a specific type of Services that we currently offer consists of putting Sellers and Buyers together so that they may conduct transactions together based on any given set of rules that these may determine together (provided these comply with applicable laws). We do not sell nor buy anything. Similar to a telephone or Internet company, we are only a passive conduit and venue allowing Sellers and Buyers to communicate with one another and meet digitally to transact together. At present, our Services allow You to participate, whether as Seller or Vendor, in purchase and sale transactions with one another under three different transaction formats, namely:
- Straight Purchase and Sale Transactions. Under this model, Buyers and Sellers buy and sell items at a pre-determined offering price. An example of this – and SWAPPY specific rules applicable to such transaction model – can be seen here.
- Timed Auctions. Under this model, Sellers conduct timed auctions allowing Buyers to make bid in the hope of eventually purchasing the coveted items on sale. An example of this – and SWAPPY specific rules applicable to such transaction model – can be seen here.
- Live Auctions. Under this model, Sellers that are conducting live auctions from a brick and mortar location give Online access to their live auctions to Buyers to allow them to make bid in the hope of eventually purchasing the coveted items on sale. An example of this – and SWAPPY specific rules applicable to such transaction model – can be seen here.
Our Services may include such services as putting various items and property up for sale using the Services, contacting or placing bids with Sellers via the Site, searching and accessing past and upcoming auction records and information as well as Seller and Buyer ratings and history, and so forth. Additional terms and conditions applicable to certain portions of the Services may be posted in relevant areas within the Site from time to time and will apply to You. Together with this Agreement, such additional terms and conditions will govern your use of those Services or any other services made available by Us to You. Notwithstanding anything contrary in this Agreement, SWAPPY may at any time in its sole discretion, modify, change, alter, enhance, suspend, disable, terminate or discontinue any and/or all Services for any reason. The specifics of Services offered hereunder, as well as any additional terms, conditions, policies or restrictions applicable to its use and access from time to time are described and set forth on the Site, and it is Your responsibility to regularly review the Site to be familiar with these at all times. As of the Effective Date, You hereby confirm that You have reviewed such specifics, additional terms, conditions, policies and restrictions, and that it You are familiar with and accepts these as being applicable and included by reference in this Agreement.
D. SWAPPY IS NOT YOUR COUNTERPART, WHETHER AS SELLER OR BUYER
E. YOU ARE SOLELY RESPONSIBLE FOR YOUR DEALINGS WITH OTHER MEMBERS AND USERS, SELLERS, BUYERS AND THIRD PARTIES
Because SWAPPY is only a passive conduit and venue allowing Sellers and Buyers to communicate with one another and meet digitally to transact together, You remain entirely and solely responsible to put in place, contract for, agree and comply with a variety of terms and conditions with third parties. We have no control over and no liability for the quality or legality of the items displayed within our Services or on our Site, or as to the truth or accuracy of the descriptions of such items, upcoming auction events or auction results displayed therein. Also, and again by way of example only, we have no control over and no liability for the truth or accuracy of any listings, the right or ability of any Seller to sell or the right, the capacity or the ability of Buyers to buy any items. We have no control over and no liability on any buyer or Seller actually completing any transaction. In addition and for example and without limitation, You are responsible, at Your sole cost and expense:
- 1. for providing, obtaining, procuring and maintaining, and for ensuring that all hardware, software, electrical and other physical requirements and equipment for Your use of the Site and the Services, including telecommunications and Internet access connections and links, web browsers, bandwidth and other equipment, programs and services required to access and use the Site and the Services, are compatible with the Site and the Services;
- 2. for satisfying yourself that the terms and conditions governing any purchase and sale transaction that You contemplate or enter into, whether as Buyer or Seller, are complete and adequate for You and appropriately cover all possible circumstances and eventualities to Your satisfaction, and for complying with such terms and conditions. Without limiting the generality of the above, You must agree with each Seller (or make yourself comfortable as to), without limitation and by way of example only, as to the following:
- (a) Each Seller may have particular eligibility requirements that must be met by You in order for You to have the right to participate in the sale/purchase of the item or property. You may be required to provide certain information included in Your account in order to participate to an auction, and You therefore agree to allow Us to provide any of Your account information to such a Seller whenever necessary, including for participating in auctions;
- (b) Each Seller in a live auction may charge a premium (in addition to the fee that a winning bid is required to pay above the auction price) as well as shipping, handling, insurance and other fees including applicable taxes, customs and so forth;
- (c) Each Seller may have different rules as to a broad variety of matters, including bid cancellations and lot and items modifications (and some lots that are made available on an auction floor may not be included in online live auction services); and
- (d) Whether the terms and conditions of the Seller are complete and adequate for You and appropriately cover all possible circumstances and eventualities.
- 3. for procuring separately all relevant ancillary services that you deem necessary or useful, including shipping services, warranty services, insurance, custom assistance, etc.; and
- 4. if You are a Vendor, for opening and maintaining in good standing a PayPal account as all fees hereunder are currently payable to SWAPPY using PayPal.
For Your information only, we have started putting together a series of potentially suggested good practices in relation to various aspects ancillary to using the Services. You may review these and use these to inspire You as to how You decide to take on and fulfill You responsibilities as to the above, including in relation to the negotiation and setting up of terms and conditions with other users and third parties.
G. AVAILABILITY OF SITE AND SERVICES – NO WARRANTIES PROVIDED
YOU UNDERSTAND AND AGREE THAT FROM TIME TO TIME – INCLUDING DURING AUCTIONS – THE SITE AND/OR ANY SERVICES MAY BE INACCESSIBLE, UNAVAILABLE, DEFECTIVE OR INOPERABLE FOR ANY REASON, INCLUDING: (I) EQUIPMENT, NETWORK, INTERNET, HARDWARE OR SOFTWARE MALFUNCTIONS; (II) PERIODIC MAINTENANCE PROCEDURES OR REPAIRS THAT SWAPPY MAY UNDERTAKE FROM TIME TO TIME; (III) SELLERS AND BUYERS, (IV) THIRD PARTIES INCLUDING THIRD PARTY PROVIDERS, (V) FAULTS OR NEGLIGENCE, OR (VI) CAUSES BEYOND THE REASONABLE CONTROL OF SWAPPY. WHILE SWAPPY WILL ATTEMPT TO PROVIDE THE SITE AND THE SERVICES ON A CONTINUOUS BASIS, YOU ACKNOWLEDGE AND AGREE THAT SWAPPY CANNOT ENSURE OR GUARANTEE THE AVAILABILITY OR THE QUALITY OF THE SITE OR ANY SERVICES AT ANY TIME OR ON A CONTINUOUS OR UNINTERRUPTED BASIS, THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SITE OR THE SERVICES. YOU UNDERSTAND AND AGREE THAT SWAPPY HAS AND SHALL HAVE NO LIABILITY WHATSOEVER AND SHALL BE RELIEVED AND EXCUSED OF ANY DEFICIENCY TO PERFORM HEREUNDER AND OF ANY LIABILITY (INCLUDING IN RELATION TO ANY MISSED OPPORTUNITIES IN RESPECT OF AUCTIONS BY REASON OF THE SITE AND/OR ANY SERVICES MAY BE INACCESSIBLE, UNAVAILABLE OR INOPERABLE FOR ANY REASON).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWAPPY, THE SITE, ALL SERVICES AND ALL OTHER PRODUCTS OR SERVICES MADE AVAILABLE, PERFORMED, LICENSED OR PROVIDED TO YOU HEREUNDER, AND ANY AND ALL INTELLECTUAL PROPERTY RIGHTS HEREUNDER ARE FURNISHED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY, REPRESENTATION, OR CONDITION OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL, OR IN TORT, WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATIONS WITH ONE ANOTHER, OR WHETHER ARISING AS RESULT OF THE NATURE OF THIS AGREEMENT OR IN CONFORMITY WITH USAGE, EQUITY OR LAW, OR OTHERWISE, INCLUDING ANY AND ALL WARRANTIES, REPRESENTATIONS, OBLIGATIONS, RIGHTS OR CONDITIONS OF TITLE, OWNERSHIP (INCLUDING BUT NOT LIMITED TO THE WARRANTY THAT THE RELEVANT PROPERTY IS FREE OF ANY OTHER RIGHTS OR CHARGES), NON-INFRINGEMENT, SATISFACTORY QUALITY, CURRENCY, ACCURACY, COMPLETENESS, APPROPRIATENESS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A GENERAL PURPOSE, QUALITY, WORKMANSHIP, HIDDEN DEFECTS, PEACEFUL ENJOYMENT, SECURITY, DELIVERY, GOOD STATE OF REPAIR, WARRANTY AGAINST EVICTION, WARRANTY AND DUTY TO INFORM, DUTY TO ACT IN THE BEST INTEREST OF THE OTHER PARTY, OR OTHERWISE, EACH OF WHICH ARE HEREBY EXPRESSLY DENIED AND DISCLAIMED.
WITHOUT LIMITING THE GENERALITY OF THE ABOVE, SWAPPY DENIES AND DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY CLAIM OF ANY KIND WHATSOEVER RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO: (i) ANY ERRORS IN OR OMISSIONS FROM THE SITE OR THE SERVICE, OR THEIR CONTENT, OR ANY DATA OR INFORMATION; (ii) THE UNAVAILABILITY OR UNINTERRUPTED USE OF THE SITE OR THE SERVICE OR ANY PORTION THEREOF ; (iii) DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS ON THE SITE, IN THE SERVICES, OR IN ANY SERVER THAT POWERS THE SITE OR THE SERVICES; AND (iv) ANY THIRD PARTY INFRASTRUCTURES, SOFTWARE, WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH HYPERLINKS CONTAINED IN THE SITE OR THE SERVICES, INCLUDING ANY ERRORS OR OMISSIONS THEREFROM. WE DO NOT WARRANT THAT ANY FILES AVAILABLE FOR DOWNLOAD THROUGH THE SITE OR SERVICES WILL BE SAFE, APPROPRIATE, OR FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU. IN ADDITION WE HAVE NO KNOWLEDGE AND MAKE NO CLAIMS, REPRESENTATIONS OR WARRANTIES AS TO THE AUTHENTICITY OR CONDITION OF ANY ITEMS SOLD THROUGH THE SITE OR THE SERVICES.
H. FEES FOR OUR SERVICES AND PAYMENT TERMS
You agree to pay SWAPPY (or its designees) all charges and fees corresponding to all Services provided hereunder and incurred on or through Your account, at SWAPPY’s then applicable rates(collectively, the “Fees”). SWAPPY may, at any time upon notice (including through an email or a posting on the Site), adjust or increase, on a going forward basis, the Fees in its discretion.
Except as may be otherwise expressly set forth in advance by SWAPPY, You shall be invoiced monthly, and invoices will be due and paid by You upon issuance through Your Paypal account or such other means as is authorized or required by SWAPPY in its discretion from time totime . All Fees are payable in Canadian dollars. Fees exclude, and shall be paid in addition to and without any reduction for, any and all applicable sales, goods and services, use and similar taxes, duties, withholdings, tariffs, levies or other governmental charges or expenses (including any value added taxes), but excluding any taxes on SWAPPY net income (“Taxes”), which will be billed to and paid by You at the same time as the underlying Fees. Any failure to make any payment of any Fees or Taxes in strict conformity with the above requirements shall entitle SWAPPY, in addition to SWAPPY’s other rights or remedies hereunder or at law, in equity or otherwise, at its option, to (i) terminate this Agreement immediately, and/or (ii) suspend in whole or in part the provision of any Services, Site or other benefits hereunder until such time as Your account is in good standing again. SWAPPY may also assess, in which case You will then also pay, a finance charge of the lesser of 1.5% per month (18% annually) or the highest amount allowed by law on all past due amounts. Except as otherwise expressly set forth herein, Fees are non-refundable. SWAPPY may also assess, and You will then also pay, Fees in respect of any re-activation of Your account following any termination or suspension.
I. WHAT YOU REPRESENT AND WARRANT TO US
You represent and warrant to SWAPPY that: (i) You have (if you are a natural person, the required majority age) the power and authority to enter into and perform Your obligations under this Agreement, and that, if you are not a natural person, each individual in Your organization who accesses and uses the Site or the Services is authorized by to use the Site and the Services for You and on Your behalf; (ii) You shall comply with all of the terms and conditions of this Agreement, as amended from time to time; (iii) all Contentinformation and data provided by You to SWAPPY or posted on, in or shared through the Site or in the Services by You is truthful, accurate and complete, complies with this Agreement, and is not misleading in any way and does not violate or misappropriate the rights of any person; (iv) Your Content (as defined in Section K below) does not and shall not (a) violate any applicable law or regulation, including false advertising or unfair competition under the laws of any jurisdictions, (b) infringe or misappropriate any proprietary, intellectual property, Agreement or other right of any person, (c) contain any computer viruses, worms, Trojan horses, time bombs, or other programs, scripts, or instructions that are intended to or do damage or detrimentally interfere with the operation or use of the Services or the Site, or to intercept, steal, misappropriate or expropriate any proprietary information, trade secret, or other confidential data, information or Personal Information, (d) to a reasonable person, be abusive, obscene, pornographic, defamatory, invasive of privacy, harassing, grossly offensive, vulgar, threatening, malicious, otherwise objectionable or in way derogatory about SWAPPY or any other party, (e) create any liability whatsoever for SWAPPY, expose SWAPPY to Claims (as defined in Section N), or cause in any away SWAPPY to lose or damage (in whole or in part) its relationships with any other person or the Third Party Providers, (f) contain any links to or from other information or websites for which you do not have the express right to make or reproduce such links, and/or (g) solicit or involve the purchase or sale, or any offer or proposal in respect thereof, of counterfeit, stolen or illegal items, or solicit or commit any fraudulent transaction or other form of criminal activity, whether based on the laws of Your jurisdictions, the United Dstates or Canada; (v) You will not upload, post, or otherwise make available any Content protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right.; You are solely liable for any and all damages and Claims (as defined in Section N) resulting from any infringement of copyrights, trademark, proprietary rights, or any other harm resulting from such a submission; by uploading, posting, or otherwise making available any Content, you hereby grant, or warrant that the owner of such Content (if not You) has expressly granted, SWAPPY a license identical to that which is set forth at Section K below; (vi) You will only use the Site and the Services for the express purposes permitted under this Agreement and in accordance therewith, and as expressly permitted under any terms and conditions applicable to You; and (vii) all transactions, activities, sales, purchases that You will complete, conduct or offer or propose to conduct or complete on, in, through or using the Site or the Services are and will at all times be and continue to be legal in both each of Your jurisdiction, the United States and Canada.
J. PROHIBITED CONDUCT AND RESTRICTED USE
Your right and privilege to use or access any Services or the Site, if any, are limited to and are as expressly set forth in this Agreement. Except as expressly set forth in this Agreement, You have no rights with respect to the Services, the Site or otherwise. No property, ownership or real right or interest in any SWAPPY property (including intellectual property), or any component thereof, is granted, assigned, conveyed, transferred or sold to You by virtue of this Agreement or otherwise. Without limitation, You may not and shall not, directly or indirectly, alter, destroy, obscure or remove any copyright, trade secret, patent, trademark or other proprietary or legal markings or notices placed upon or contained within the Services, the Site or otherwise, any component thereof, or any supporting media. In addition, and without limiting the generality of the above, and except only as otherwise expressly provided herein, no part of the Services, the Site or any other SWAPPY intellectual property, including materials retrieved therefrom and the underlying HTML code, may be used, reproduced, duplicated, republished, copied, reformatted, displayed, reverse engineered, reverse assembled, transmitted, distributed, licensed, sold, resold or exploited by You in any form or by any means, and in no event shall materials from the Site or Services be stored, saved or copied by You in any way without the prior written permission of SWAPPY. You further agree that it will not use any device, software or routine to interfere with the proper working of the Site or the Services, and You agree that You will not use any automated means, including agents, robots, scripts or spiders, to monitor or copy any Services, the Site or any SWAPPY intellectual property. In addition, and without limitation to the foregoing, You further agree that You will not take any action that imposes an unreasonable or disproportionately large load on SWAPPY's infrastructure, as determined by SWAPPY. You also agree not to engage in any unacceptable or inappropriate use or access of the Services or the Site, which includes use of the Services or Site to: (i) buy, sell, offer to sell or to buy, any illegal items under any applicable laws, (ii) disseminate or transmit material that, to a reasonable person may find abusive, obscene, pornographic, defamatory, invasive of privacy, harassing, grossly offensive, vulgar, threatening, malicious, otherwise objectionable or in any way derogatory about SWAPPY or any other person; (iii) disseminate, store or transmit files, graphics, software or other material that infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of Canada, the U.S., and their agencies and authorities, or without all required approvals, licenses or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Site or any other computer network; (vii) disseminate, store or transmit viruses, Trojan horses or any other malicious code or program; (viii) violate any applicable laws or regulations; or (ix) engage in any activity the purpose of which is not expressly or impliedly permitted under this Agreement.
K. YOUR CONTENT
“Content” includes any and all information, data, text, work, designation, software, music, audio and video clips, graphics, links, trade or service mark, trade name, advertising, photos, pictures, images, logos, comments, reviews, text, questions, conversations, ratings, search terms or other materials, in any media or format, and “?our Content” means Content that You provide us or upload on, post, share, use or transmit through, on or in the Site or the Services. You are solely and entirely responsible for Your Content and SWAPPY acts at all times solely as a passive conduit of Your Content. You hereby license and authorise SWAPPY to use Your Content for any and all purposes relevant to SWAPPY's business in its discretion, including all Your activities on the Site or through or using the Services, so that we are not violating any rights that You or any Person might have in or under Your Content, and You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up, illimited, sub-licensable (through multiple tiers), right and license to use, copy, modify, reproduce, adapt, publish, translate, publicly display and distribute, and otherwise exploit Your Content, in whole or in part, including the modification and preparation of derivative works in respect thereof (with full ownership of such modifications and derivative works belonging to SWAPPY), and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such Content, in any media or format now known or hereafter existing.
L. SWAPPY INTELLECTUAL PROPERTY
As between us, SWAPPY is and shall remain the sole and exclusive owner of all Services, the Site, the Services, all underlying technology, infrastructure, software and intellectual property, and all Content it contains (other than Your Content), and any other materials provided to You by SWAPPY hereunder, which may include computer software, databases, marks, indexing, search, and retrieval methods and routines, intranet pages, and similar materials, and any and all intellectual property and intellectual property rights therein or there under, and in each case any and all components thereof, (collectively, the “SWAPPY Property”). You acknowledge that the Services and the Site – and SWAPPY Property – include contain Content that are protected by copyright, trademark or other proprietary rights of SWAPPY or various third parties. All Content used or made available through the Services or the Site is copyrighted as a collective work and/or compilation of SWAPPY under applicable copyright laws. SWAPPY owns a copyright in the placement, selection, positioning, coordination, look and feel, arrangement and enhancement of such Content, as well as, of course, in the Content that is original to SWAPPY. You agree to comply with any and all copyright or proprietary notices, information, warnings or restrictions on or in in any Content (and to maintain all copyright and other notices contained in the Site, Services and/or Content). Subject to the terms and conditions of this Agreement, while You are in good standing hereunder, you have a limited, revocable, non-exclusive, non-transferable, non-sub-licensable and temporary license to access and view the Site, the Services and/or their Content, only for your own limited personal non-commercial use. Yo do not have any other right in respect of the Site, the Services or theits Content and any other SWAPPY Property and, without limiting the generality of the above, You do not own, You have no right to make any copies thereof, or to modify, publish, transmit, transfer or sell, resell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit or otherwise commercially use any of the Site, Services, and/or Content and/or other SWAPPY Property, in whole or in part.
? is a trademark of SWAPPY. All rights reserved. All other trademarks associated with product and company names that may appear in connection with the posting of items for sale are the property of their respective owners. Use of such third party trademarks does not suggest or imply any affiliation with or endorsement by those third parties.
You shall indemnify and hold harmless SWAPPY (and its officers, shareholders, directors, agents, parent, subsidiaries, subcontractors, joint ventures, and employees) from and in respect of any and all Claims (as defined in Section N) arising out of or in any way related with or to: (i) any breach of this Agreement, of any of its terms and conditions, or of any represenatations, warranties, covenants or other conditions hereunder by You or Your agents, employees, or other representatives, (ii) any fault, act or ommission of/by You or Your agents, employees, or other representatives, (iii) Your Content, (iv) any misuse, unauthorized use, misappropriation, violation or other wrongful use of any SWAPPY Property by You or Your agents, employees, or other representatives, (v) any use of the Site or the Services by You or Your agents, employees, or other representatives, (vi) any third party Claims in any way related to You or any of the items referred to in this Section M, and (vii) any and all transactions, activities, sales or purchases that You (or Your agents, employees or other representatives) complete, conduct or offer or propose to conduct or complete on, in, through or using the Site or the Services.
N. LIMITATION OF LIABILITY
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, SWAPPY’S TOTAL MAXIMUM AGGREGATE CUMULATIVE LIABILITY (INCLUDING THAT OF ITS AFFILIATES AND REPRESENTATIVES) TOWARDS YOU, YOUR AFFILIATES (WHERE APPLICABLE), AND ANY OTHER RELATED PERSON, (COLLECTIVELY, THE “AGGRIEVED MEMBER PARTY”), FOR ALL PAST, PRESENT OR FUTURE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTIONS, REQUESTS, LAWSUITS, JUDGMENTS, DAMAGES, COSTS, EXPENSES, LIABILITIES, PREJUDICES OR LOSSES, INCLUDING IN ALL CASES ATTORNEYS FEES AND COSTS (JUDICIAL AND EXTRA-JUDICIAL) (COLLECTIVELY, “CLAIMS”) IN RELATION TO OR ARISING UNDER THIS AGREEMENT, ANY SWAPPY PROPERTY, THE SERVICES, THE SITE, ANY SALE OR PURCHASE MADE THROUGH THE SITE OR THE SERVICES, OR ANY OTHER BENEFITS, PRODUCTS OR SERVICES (INCLUDING FOR BREACH OF CONTRACT, STRICT OR STATUTORY LIABILITY, EXTRA-CONTRACTUAL OR DELICTUAL LIABILITY, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL, STATUTORY OR EQUITABLE THEORY), SHALL BE LIMITED TO THE AGGRIEVED MEMBER PARTY’S ACTUAL AND DIRECT DAMAGES AND SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE FEES ACTUALLY PAID TO SWAPPY BY YOU HEREUNDER FOR THE SPECIFIC SERVICES GIVING RISE TO YOUR CLAIMS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER SWAPPY NOR ITS AFFILIATES OR REPRESENTATIVES, WILL BE LIABLE TO ANY AGGRIEVED MEMBER PARTY, FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), SPECIAL, PUNITIVE, EXAMPLARY OR INCIDENTAL DAMAGES OR FOR DAMAGES FOR LOSS OF PROFITS, OPPORTUNITIES OR REVENUES ARISING IN RELATION TO OR UNDER THIS AGREEMENT, OR FOR ANY DAMAGES RELATED TO ANY MATTER ARISING FROM OR RELATING TO MEMBER'S USE, ACCESS OR INABILITY TO USE OR ACCESS THE SITE, THE SERVICES, ANY DATA OR INFORMATION, OR OTHERWISE, IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.
O. TERM AND TERMINATION
This Agreement becomes effective upon the Effective Date and shall continue in effect and be renewed from month to month until terminated in accordance with its terms (the “Term”). Either Party may terminate this Agreement for default if the other Party is in breach or default of any material obligation that is not cured within 2 calendar days notice of such breach. SWAPPY may also at any time terminate the Services, the Site and/or this Agreement at any time for convenience on notice to You, or as otherwise set forth hereunder. You may also terminate the Agreement and Your right to use and access the Services and the Site at any time for convenience by providing 30-day prior notice of termination to SWAPPY by contacting SWAPPY support here. Upon any termination of this Agreement, You shall immediately pay to SWAPPY all amounts due, payable, incurred (invoiced or not) or outstanding hereunder. In addition, upon termination of Your use of the Services or the Site, any information or data stored by SWAPPY on the Site, in the Services or otherwise on Your behalf may be destroyed and shall no longer be available to You.
Assignment. SWAPPY may assign its rights and/or obligations under this Agreement without Your consent in its discretion to anyone.
Applicable law. The validity, interpretation, performance, liability under, enforcement and all other aspects of this Agreement shall be governed by the laws of Quebec without regards to its conflict of law provisions.
Jurisdiction and venue. The courts of the province of Quebec or the federal courts of Canada situated therein, as applicable, shall have sole and exclusive jurisdiction over any action, Claim, demand, proceeding or lawsuit whatsoever arising under or in relation to this Agreement or its subject matter. The Parties irrevocably agree, consent and submit themselves to the subject matter and personal jurisdiction of the courts of the Province of Quebec and of the federal courts of Canada situated therein for such all encompassing purposes. This choice of jurisdiction does not prevent SWAPPY from seeking injunctive relief with respect to a violation, infringement or misappropriation of intellectual property rights in any jurisdiction.
Entire agreement. This Agreement and all other documents incorporated herein by reference constitute the Parties’ entire agreement concerning the subject matter hereof, and supersede any other prior and contemporaneous communications. Any terms and conditions, maintained by You or Your Affiliates or contained in any purchase order will not apply. SWAPPY may amend this Agreement as expressly permitted herein. Continued use of the Services by you constitutes your binding acceptance of this Agreement, including any changes or modifications made by us from time to time as described herein. You agree to review the terms and conditions of this Agreement periodically to become aware of such revisions and to review your compliance with them. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you must immediately cease all use of the Services and Site.
Force majeure. Apart from the payment of any amounts payable hereunder, neither Party shall be liable for performance delays or failures to perform due to causes beyond its reasonable control, including strikes, disruptions due to the Internet, network components or connections, Third Party Providers or hardware functions (“Force Majeure”).