posted this on August 10, 2012 01:30 AM
LAST UPDATED: May 19, 2014
TERMS OF SERVICE
Welcome to the Swap.com Service!
Please read carefully the following terms of service (hereinafter “TOS”).
The TOS explain how the Swap.com Service available at netcycler.com and swap.com and its subdomains (the “Service”) works and how You can use it. The Service is brought to you by Netcycler, Inc. (“we,” “us”), a corporation organized under the laws of Delaware and with the address 715 W. Racquet Club Drive, Addison, IL 60101. For more information, please contact .
By accessing the site or by using the Service you agree to the TOS. If you do not agree to the TOS, please do not access or use the Service.
The TOS apply between us and you or the legal entity that you represent (hereinafter “You”).
In addition to these TOS, some parts of the Service may include additional provisions, descriptions of service, and/or other instructions which You must also comply with in addition to these TOS.
1. General Description: What is the Service?
The Service enables trading of goods (“Items”) between two or more parties. We are not a party to the trade but merely offer a platform for trading of Items and for bringing together the parties involved in the trade.
To use the Service You need a properly operational terminal, an internet browser, and a data link, and You are responsible for any and all costs associated therewith. You must also make sure that the hardware and/or software that you are using will not cause any detriment to the operation of the Service.
2. Use and Registration (Sign up)
These Terms govern the use of the Service and by using the service and/or registering (sign up) with the Service You agree:
That you are of a legal age to form a binding agreement with us;
That if you are entering into the agreement embodied in these Terms on behalf of a corporation or other legal entity, you represent that you have the authority to bind such an entity, its affiliates, and all users who access the Service through your account to these Terms, in which case the terms “you” or “your” shall refer to such entity, its affiliates, and users associated with it. These terms and conditions apply for corporations and other legal entities other than private persons when buying items. In case you represent a corporation or other legal entity (collectively “Corporate Seller”) who wants to offer items through Swap.com, please contact for further information and the terms applicable to you as a corporate seller.
To provide true, accurate, current and complete information about yourself as prompted by the registration (sign up) process;
To maintain and promptly update the information provided during registration (sign up) to keep it true, accurate, current, and complete; and
That if you provide any information that is untrue, inaccurate, outdated, or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, we may terminate your user account and refuse current or future use of the Service.
Browsing or buying items in the Service does not require You to register (sign up) to the Service. However, if You wish to post Items to the Service, You need to register (sign up).
Following your registration (sign up), You will be granted a user account with personal and individual identification information. You must preserve the identification information carefully so that any third parties cannot access the identification information. The identification information is personal to You and You must not disclose it to anybody else.
If a third party acquires or otherwise becomes aware of your identification information, You must notify us immediately thereof by sending an e-mail to . (Changes in the e-mail address will be notified in the Service.)
We have the right, in our sole discretion, to suspend Your user account upon receiving notice from You or otherwise about Your identification information having been compromised.
We have the right, in our sole discretion, to modify your identification information at any time for information security or other similar reasons. You will be informed of such modifications beforehand to the extent reasonably possible.
You are entitled to only one user account at a time. We have the right, in our sole discretion, to suspend access to Your user account temporarily or permanently if You or the use of your user account are in breach of the TOS, applicable laws and/or administrative regulations or if there otherwise is a similar reason for such a suspension.
3. Personal Data – What about Privacy?
Respect the privacy of other users;
Not engage in unauthorized collection of user’s content or information, and/ or not otherwise access the Service by automated means (including, but not limited to, so-called bots or scrapers) without an authorization from us;
Not reveal any personal data related to another individual, including, but not limited to, a person's address, phone number, e-mail address, credit card number or any information that may otherwise be used to track, contact or impersonate another individual;
Not upload or transmit unsolicited e-mail messages or mobile device messages;
Not utilize a username that is the name of another person and intending to impersonate that person; and
Not provide any false personal data to us or create any user account for anyone other than yourself without such person's permission.
Please be reminded that you must protect any passwords or other credentials associated with your account(s) for the Service, and take full responsibility for any use of the account(s) under your password. You hereby acknowledge that you bear the full and sole responsibility for adequate security, protection and backup of your credentials and materials you post in the Service.
Browsing Items in the Service is free of charge. However, posting Items to the Service and using certain other functionalities are subject to one or more fees. The amount of such fees will always be clearly indicated on the Service and by using any functionalities associated with such fees You commit to paying such fees. Depending on the element of the Service, the payments can be done by credit card, SMS message, PayPal-payment system or other method as indicated in the Service in more detail from time to time.
5. Trading Items: How Are the Items Traded?
If you see an item in our Service that you want to get through swapping, you can post a Want referring to that item in the Service (a "Want"). The Items are traded by sending Items to and/or posting Wants in the Service. Trades can be made between two or more trading partners. When Your Item and one or more Wants made by one or more trading partners match, the trade will be completed.
You understand and agree that by sending Items and/or by posting Wants to the Service You commit to the trade in accordance with the terms You have specified with Your Item or Want. Once Your Item or Want is matched with some other trading partner’s Want or Item, the trade will be automatically completed by the Service without any further confirmation from You. You will be notified of completed trades for Your Items and Wants.
You represent and warrant to us and to the other trading parties that You own and that You have the right and authority to sell and/or otherwise dispose of the Item(s) You send to the Service.
You also represent and warrant that the Items you have sent to the Service for trading match the information provided by you to the Service, and that the information You have given is not incorrect, out-of-date or misleading. You are obligated to make the payment for the Items you obtain to your trading partner(s) as agreed between You and the trading partner(s).
We will not become the owner of any Items sent to the Service and therefore we are not a party to any trade. We are not liable for any Items (or defects thereof) traded through the Service.
As a part of the Service we offer a delivery and storage facility service for the traded Items (“Delivery Hub Service”). In the Delivery Hub Service You send the Items to a Delivery Hub facility (“Hub”) maintained by us, and we will check the condition of Your Items, take photos of them for the Service, add the accepted Items to Your account, and ultimately deliver the Items from the Hub to the other trading partner(s) once a trade is completed. Your Item will be available for trading when it has been added to Your account and you have specified the price for the Item and associated it with zero or more Wants. You understand and agree that we may group two or more of Your Items together to form a single trading Item, in which case you must specify the price for such a group Item and associate Your Wants with it. The more detailed instructions and other necessary information relating to the Delivery Hub Service will be presented in the Service from time to time and You agree to be bound and abide by such instructions and information.
When You send Items to or receive Items from the Hub You understand and agree and warrant that:
(i) Your Item will not be visible in the Service until we have received Your respective Item in the Hub and accepted it to the Service; (ii) we may accept or reject Your Item in our sole discretion (reasons for rejection may include without limitation that the Item is broken, dirty, smelly, or otherwise in bad condition) and group Your Item together with other Items you have sent to the Service; (iii) You own the Items You send to the Hub and will continue to own the Items You send to the Hub (until and unless a trade is completed), and we will not become the owner of any such Items (unless otherwise provided in these TOS); (iv) we are only offering a temporary storage and delivery service for the traded Items and will not be a party to any trade despite receiving them in the Hub; (v) We do not provide any insurance coverage for any Items sent and/or stored in the Hub; if You desire to have insurance coverage for any Items in the Hub You must obtain such coverage independently at Your own expense; (vi) any Items sent to the Hub and any Items to be received from the Hub are stored at Your sole risk and responsibility and You shall be responsible for any and all theft, damage to, and deterioration of the Items, and shall bear the risk of any and all damage caused by flood or fire or leakage or overflow of water, mildew, heat, spillage of material from any other space, removal or delivery of the Items, pest or vermin or any other reason whatsoever including acts or omissions, negligent deliberate or otherwise, of we or persons under our control; (vii) we will not be liable for any loss or damage to any Items stored in the Hub caused by acts of third parties, by any forces of nature, or otherwise; and (vii) You may not send to the Hub any Items which would be injurious to the Hub facility or which would be in any way dangerous to persons or property in or around the Hub facility, or that are against the trading guidelines or other instructions provided by us from time to time in the Service; (viii) in case Your items are rejected as defined in (ii) above, we will notify You about the rejection via the e-mail address associated with Your user account (the “Rejection Notification”) and we will store Your items for at least 14 days following the Rejection Notification. If You want Your rejected Items returned, You should order and pay for a shipment to get the Items back. If You have not ordered Your rejected items back and paid for their shipment within 14 days from the sending of the Rejection Notification, the Service has the right to dispose of the rejected Items in the manner of its own choosing.
If we offer a delivery service (“Delivery Service”) for the delivery of the Items from You to the Hub and/or from the Hub to You, we will use one or more subcontractors (“Carrier”) to perform the Delivery Service in accordance with the terms and conditions agreed from time to time between us and such Carriers regarding the delivery of the Items from one trading partner to another (“Delivery Terms”). You acknowledge and agree that the Delivery Service will be carried out and Your rights and obligations with respect to the Delivery Service are determined in accordance with the Delivery Terms as if you were directly contracting the Delivery Service with the Carrier. Accordingly, You must undertake all applicable obligations imposed on the customer in the Delivery Terms and You accept that You have no rights or remedies other than those set forth in the Delivery Terms. Because we, and not You, are the direct contracting party with the Carrier, we undertake to exercise on Your behalf and at Your expense within a reasonable time from Your notification, any such rights and pursue any such remedies that are available under the Delivery Terms, as requested by You in such notification. You understand and agree that the foregoing shall constitute our entire liability with respect to the Delivery Service. The Delivery Terms are available through the Service here once the Delivery Service is provided, or upon request from us.. You acknowledge and agree that You have read the Delivery Terms prior to using the Delivery Service and by using the Delivery Service You indicate Your acceptance to the Delivery Terms. If You do not want to accept the Delivery Terms You must not use the Delivery Service.
You understand and agree that we charge a fee for the use of the Delivery Hub Service (“Hub Service Fee”). You agree to pay the Hub Service Fee in accordance with the amount and schedule specified in the Service from time to time. You agree and acknowledge that in the event that You have not paid the Hub Service Fee, or any other moneys owing under this TOS, in full within fourteen (14) days of the due date, we will, without further notice and in our sole discretion, have the authority to sell or dispose of any of your Items in the Hub on such terms that we may determine in our sole discretion. In addition, we may charge a separate fee for such sale or disposal of Your Items and/or require payment of default costs together with any costs associated with the sale or disposal of Your Items. You agree that any excess moneys recovered by us on such sale or disposal after the settlement of any and all outstanding fees and costs may either (i) be donated to a charity chosen by us (list of the charities chosen by us is given in http://support.swap.com/entries/23697108-Donating-items) or (ii) if You have not allowed your Items to be donated to charity, be returned to You. You also understand and agree that You will not be relieved of the obligation to pay any such portion of any unpaid due amount that cannot be recovered by the sale or disposal of the Items.
If you wish to reclaim possession of the Items You have sent to the Hub, the Items will be returned to you to the address You have provided in the Service provided that the Items have not been traded yet. You understand and agree that a separate fee for the return may be charged by us.
If You wish to terminate Your obligation to pay the storage fee for one or more of Your Items that have not traded yet but you do not wish to reclaim the possession of those Items and if You have chosen the “Donate selected items” option in the Service (as such an option may be available from time to time and in our sole discretion) then (i) you will no longer be liable for the storage fee of such Items and (ii) we shall have full authority to use and sell or otherwise dispose of such Items without having any obligation to account any sales proceeds to You.
If you choose to use such an option, You understand and agree that (i) by doing so you authorize us to donate the sales proceeds paid for Your Item to the charity You have chosen; and (ii) the sales proceeds for Your Item will not be transferred to You but we will automatically account them to the charity You have chosen. You furthermore understand and agree that the charity you have chosen may pay us a commission for the donations that are made through the Service.
You agree to be bound with any and all other terms and conditions relating to the donation option as presented in the Service in connection therewith from time to time.
7. Notifications: How do I Make Notifications Concerning the Service?
All notifications concerning these TOS are to be sent by regular mail to Netcycler Inc., 715 W. Racquet Club Dr., Addison, IL 60101. We may send notifications to You into the e-mail address You have entered in the Service. We may also publish general notifications in the Service.
8. Other Terms: What Else Should I Be Aware of?
Availability of the Service
We shall have the right to make modifications to the content, technology and use of the Service in our sole discretion. If such modifications require You to update Your hardware or software, You must do so at Your own expense. We endeavors but are not obligated to post notifications of such modifications reasonably in advance in the Service.
We shall have the right suspend the Service, or any part thereof, temporarily and/or permanently in our sole discretion. We endeavor but are not obligated to notify You of such suspension reasonably in advance in the Service.
We endeavor but are not obligated to notify You about temporary service and other breaks in the availability of the Service and on the website of the Service.
Your access to and use of the Service is at your own risk. You understand and agree that the Service is provided to you on an "AS IS" and "AS AVAILABLE" basis. Without limiting the foregoing, OUR AFFILIATES AND WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Service or any content thereon. We will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Service. Moreover, you agree that we do not have responsibility or liability for the deletion of, or the failure to store or to transmit, any material or content and other communications maintained in the Service. We make no warranty that the Service will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the Service or our representatives, will create any warranty not expressly made herein.
Links to Third Party Websites
The Service may contain links to websites owned and/or operated by third parties. Such links are provided for informational purposes only. We are not responsible for any such third party websites and do not have control over any materials or content made available therein. Our inclusion of a link to a third party website in the Service does not in any way imply our endorsement, advertising, or promotion of such websites or any materials or content made available therein. By accessing a third- party website you accept that we do not exercise any control over such websites or their content. We have no responsibility of the content of any third-party website. We encourage you to familiarize yourself with the terms of service applicable to any third-party website you may access.
You are responsible for the information and material You have provided to the Service and consequently to other users of the Service. You represent and warrant that the information or material You have provided does not infringe the intellectual property or other proprietary rights of third parties and that the information or material does not breach these TOS or any applicable laws or regulations, or cause any damage or disruptions to the Service or the network.
For example, with respect to any photos You upload to the Service the foregoing means that any and all such photos have been taken by You or that the person or persons who have taken such photos have given their consent for the photos to be uploaded in the Service. You also represent and warrant that you have obtained the consent of any person or persons appearing on any photos for such photos to be uploaded in the Service.
By accessing or otherwise using the Service you grant us the right of use to all the information and material you upload to the Service to the extent necessary or useful for us for the operating of the Service and/or business.
You hereby agree not to assert any claims against us relating to the information or material you have uploaded in the Service. We shall have the right to make modifications that are necessary or useful to the information and material You have uploaded in the Service.
We shall not be liable for any information or material You have received or accessed from third parties through the Service or otherwise.
You shall have the right to use the Service for its normal and intended use. You may not use the Service or the material available in the Service for any other purpose. Except for the express rights granted to You in these TOS, we do not grant You any rights under any intellectual property or other proprietary rights of ours.
Moreover, by giving us suggestions or feedback about the Service, you thereby grant to us a worldwide, non-exclusive, sub-licensable, assignable, royalty-free, perpetual, paid-up, irrevocable right (including moral rights) and license to fully exercise and exploit such suggestions or feedback (and all related rights) for any purpose.
By accessing or otherwise using the Service you agree not to send us prohibited Items (“Prohibited Items”). The list of Prohibited Items is available here. We reserve the right to dispose of Prohibited Items and to terminate or suspend the rights of a sender of a Prohibited Item to use the Service. Suspended or terminated users of the Service remain obligated to pay us for any and all unpaid fees.
We respect the intellectual property rights of others. We will respond expeditiously to claims of copyright infringement using guidelines and procedures set forth in Section 512 of the Digital Millennium Copyright Act of 1998 (“DMCA”). If you see any material on the Service that in your good faith belief may infringe someone's copyright, you may notify us by e-mailing us at with "Copyright" in the subject line. In order for it to be effective, your notice, also known as a takedown notice, must include the following information:
(1) The identity of the original copyrighted work that you claim is infringed or – if your notice covers multiple copyrighted works - you may provide a representative list of the copyrighted works that you claim have been infringed;
(2) A sufficiently detailed description of the content on the Service that you claim infringes the copyrighted work;
(3) Your contact information, including your full name, mailing address, telephone number, and email address, if available;
(4) A statement that you believe in good faith that the use of the allegedly infringing content on the Service is not authorized by the copyright owner, its agent, or the law; and
(5) This statement: "I swear, under penalty of perjury, that the information in this notification and complaint is accurate and that I am the copyright owner, or am authorized to act on behalf of the copyright owner of an exclusive right that is infringed"; and
(6) A physical or electronic signature of the copyright holder or a person authorized to act on their behalf.
Moreover, if you believe your work was erroneously removed due to an incorrect claim of copyright ownership, you may provide us a written counter notice. When we receive your counter notice, we may in, our discretion, reinstate the material in question in not less than 10 nor more than 14 days after we receive the counter notice unless we first receive notice from the original complaining party who filed the infringement notice that they have filed a legal action to restrain the allegedly infringing activity. To provide a counter notice to us, you may email us at.
Please note that if you provide a counter notice, in accordance with the terms of the DMCA, the counter notice will be given to the original complaining party that filed the infringement notice. To be effective, a counter notice must contain substantially all of the following information:
1. Identification of the material that has been removed or to which access has been disabled in the Service and the location at which the material appeared before it was removed or access to it was disabled:
2. Your name, address, telephone number and, if available, email address:
3. Include both of the following statements in the body of the Notice:
"I hereby state under penalty of perjury that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled."
"I hereby state that I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located or, if my address is outside of the United States, for any judicial district in which Netcycler, Inc. may be found, and I will accept service of process from the complaining party who notified Netcycler, Inc. of the alleged infringement or an agent of such person."
4. Provide your full legal name and your electronic or physical signature.
Assignment of the TOS
We shall have the right to assign our rights and obligations under these TOS to a third party without Your consent. We endeavor but are not obligated to notify You of such assignment in the Service or in another manner in advance. We shall also have the right to transfer our receivables based on the TOS to a third party. Upon the receipt of a notification of such a transfer from us, You can effectively pay the transferred receivable only to the transferee. You do not have the right to assign or transfer the rights or obligations of the TOS either partially or in whole to a third party.
We are released from our obligations under these TOS to the extent the fulfillment of such obligations is prevented or delayed due to a Force Majeure. Force Majeure means an impediment beyond the control of either party of agreement, which could not be reasonably be foreseen at the time of entering into the agreement, and the effects of which cannot reasonably be avoided or overcome.
Intellectual Property Rights
Viruses and Hacking
You must not misuse our site by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you may commit a criminal offence. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any material posted on it, or on any website linked to it.
You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. Our site must not be framed on any other site. We reserve the right to withdraw linking permission without notice. If you wish to make any use of material on our site other than that set out above, please address your request to.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF ANTICIPATED SAVINGS; ACCRUED BUT WASTED EXPENDITURE; COST OF PROCUREMENT OF SUBSTITUE GOODS OR SERVICES, LOSS OF GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY IN THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, HARMFUL, OR ILLEGAL CONDUCT OF THE USERS OF THE SERVICE OR THIRD PARTIES; (iii) ANY CONTENT OR ITEM OBTAINED FROM THE SERVICE; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF ANY MATERIAL OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. IN SOME JURISDICTIONS THE APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Under no circumstances shall our liability exceed the greater of (a) the amounts actually paid by You to us for the Service during the twelve (12) months preceding the claim for damages, or (b) ten ($10) dollars.
You agree to indemnify and hold us harmless from any claim or demand, including attorneys' fees, made by any third party due to or arising out of your breach of these TOS, or your violation of any law or the rights of a third party. Nothing in these TOS shall be deemed to exclude or limit your liability in respect of any indemnity given by you under these TOS. We reserve the right to assume the exclusive defense and control of any matter, which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
These TOS and any instructions and rules posted by us in the Service are the entire agreement between you and us regarding the Service, and the TOS supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Service.
Waiver and Severability
Our failure to exercise any rights under these TOS shall not constitute or be deemed a waiver or forfeiture of such rights or a waiver or forfeiture of such rights in the future. In the event that any provision of these TOS is held to be invalid or unenforceable by a court or tribunal of competent jurisdiction for any reason, the remaining provisions of these TOS will remain in full force and effect.
Governing Law and Resolution of Disputes
The laws of the state of New York, without regard to or application of its conflict of law provisions, will govern these Terms and any claim, cause of action or dispute arising out of or relating to these Terms will be brought solely in the state and federal courts of New York. You hereby consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
The Service is operated and provided by Netcycler, Inc. If you have any questions about these Terms, please contact us at .