THE FOLLOWING DESCRIBES THE TERMS ON WHICH SWAPTREE OFFERS YOU ACCESS TO OUR SERVICES.  

Welcome to the user agreement (the "Agreement" or "User Agreement") for Swaptree Inc.  This Agreement describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of www.swaptree.com (the "Site"). If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access our services.  

You must read, agree with and accept all of the terms and conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a member of Swaptree.  We strongly recommend that, as you read this User Agreement, you also access and read the information contained in the other pages referred to in this document, as they may contain further terms and conditions that apply to you as a Swaptree user.  Please note: underlined words and phrases are links to these pages and websites.  

We may amend this Agreement at any time by posting the amended terms on the Site.  Except as stated below, all amended terms shall automatically be effective 30 days after they are initially posted on the Site.  In addition, we will notify you in accordance with your Notification Preferences.  This Agreement may not be otherwise amended except in a writing signed by you and Swaptree Inc.  This Agreement is effective upon acceptance in registration for new registering users, and is otherwise effective on October 31st, 2006 for all users.     


2.1 General
Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law.  Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended Swaptree members.  If you are a under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians.  If you do not qualify, please do not use our Site.  Further, your Swaptree account (including feedback) and User ID may not be transferred or sold to another party.  If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement

2.2 One Account per Person, Maximum of Two Accounts per Address or Household
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 Swaptree 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.

2.3. Registration in Own Name
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. Swaptree prosecutes fraud to the fullest extent of the law.


Joining and trading items on Swaptree is currently free.   If you decide to use Swaptree’s shipping label service or buy supplies from Swaptree, we will charge you for those label and supplies.   We may change our Fees and the fees for our services from time to time.  Fees may be added, discontinued, or changed at any time without prior notice, provided that all users will have the opportunity to opt out before incurring any charges. Furthermore, we may choose to temporarily change our Fees Policy and the fees for our services for promotional events and such changes are effective when we post the temporary promotional event on the Site.  We may in our sole discretion change some or all of our services at any time.  In the event we introduce a new service, the fees for that service are effective at the launch of the service.  Unless otherwise stated, all fees are quoted in U.S.  Dollars.  You are responsible for paying all fees associated with using our service and the Site and all applicable taxes.


4.1  Swaptree is not a middle man
Although we are commonly referred to as an online trading web site, it is important to realize that we do not set up trades, we merely facilitate them.   Instead, the Site acts as a venue to allow anyone to trade any book, dvd, cd, video game, at anytime, and from anywhere.  We are not involved in the actual transaction between fellow traders.  As a result, we have no control over the quality, safety or legality of the items traded, the truth or accuracy of the listings, or the ability of traders to trade.  We cannot ensure that a trader will actually complete a trade.  Consequently, we do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of Ca.  Com.  Code § 2401(2) and Uniform Com.  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.    

4.2 Identity Verification
We use many techniques to verify the accuracy of the information our users provide us when they register on the Site.  However, because user verification on the Internet is difficult, Swaptree cannot and does not confirm each user's purported identity.  Thus, we have established a user-initiated feedback system to help you evaluate with whom you are dealing.  We also encourage you to communicate directly with potential trading partners through the tools available on the Site.

4.3  Release
Because we are a venue, in the event that you have a dispute with one or more users, you release Swaptree (and our officers, directors, agents, subsidiaries, joint ventures 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.  If you are a California resident, you waive 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."

4.4  Information Control
We do not control the information provided by other users that is made available through our system.  You may find other user's information to be offensive, harmful, inaccurate, or deceptive.  Please use caution, common sense, and practice safe trading when using the Site.  Please note that there are also risks of dealing with underage persons or people acting under false pretense.  By using this Site, you agree to accept such risks and Swaptree is not responsible for the acts or omissions of users on the Site.

Swaptree may make available to users of the Site, message boards, opinion forums, bulletin board services or other interactive communication facilities. Swaptree cannot review all communications made on or through the Site. However, Swaptree reserves the right to monitor the Forums and edit, modify or delete any materials which Swaptree in its sole discretion determines to violate this Agreement or to be in any other way offensive or contrary to any Swaptree policy, either written or unwritten. Swaptree further reserves the right to use posted materials for its own purposes for marketing, communication, advertising, or any other purpose at the sole discretion of Swaptree. You agree not to use Swaptree forums for the posting of any material that is illegal, threatening, sexually explicit, pornographic, obscene, infringing on intellectual property rights, injurious to third parties, defamatory, or otherwise objectionable.


As a trader you are obligated to complete all trades you have accepted and initiated, that have been completed.

By accepting a trade you agree to be bound by the conditions of the trade included in the item's description so long as those conditions of trade are not in violation of this Agreement or unlawful.  Unless you and your fellow trader agree otherwise, you will become the item's lawful owner upon physical receipt of the item from the seller, in accordance with Ca.  Com.  Code § 2401(2) and Uniform Com.  Code § 2-401(2).  Accepted trades are not retractable except in exceptional circumstances, such as: when your trade partner materially changes the item's description after you accept; a clear typographical error is made.   If you choose to trade for mature audience items or items that are restricted to adult use, you are certifying that you have the legal right to purchase such items.    


6.1  Listing Description
You must be legally able to trade the item(s) you list for trade on the Site.  You agree all items posted and shipped are legal and do not infringe any intellectual property rights, including but not limited to copyrights, trademarks, and patents. Your listings may only include text descriptions and other content relevant to the condition and nature of the item you are trading.

Swaptree cannot review items posted to the Site. You agree to assume full responsibility for any items posted to your account and shipped by you. You agree to hold Swaptree harmless for any violations of law or regulation that arise in connection with the posting to your account of items resulting in civil or criminal liability.

All items listed must be in a condition no worse than acceptable and must be fully functional, readable and accurate according to the condition guidelines laid out here: http://www.swaptree.com/PopupConditionDesc.aspx.

Users who have an item returned to them as defective agree not to re-list that same item for exchange unless and until the defect has been resolved.

6.2  Shipping
You agree to ship your item within 24 hours of a trade being completed. Failure to do so is in violations of Swaptree’s policy and can result in your account being suspended.

Items lost or damaged in transit are the sole responsibility of the shipping member. Swaptree is not responsible for any item that is shipped by a member and is lost or damaged in the shipping process.

6.3  Fraud
Without limiting any other remedies, Swaptree may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site. This includes, but without limiting, failing to ship an item when you are obligated to do so, or failing to acknowledge the delivery of an item when you in fact have received it.

Swaptree prosecutes fraud to the fullest extent of the law, including wire or mail fraud in violation of U.S. and state law. Swaptree assumes no liability for this or any other fraudulent activity by its members


7.1  Definition
"Your Information" is defined as any information you provide to us or other users in the registration, trading or listing process, in any public message area (including discussions, groups, item reviews or the feedback area) or through any email feature.  You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.

7.2  Restricted Activities
Your Information (or any items listed) and your activities on the Site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) be obscene or contain child pornography or, if otherwise adult in nature or harmful to minors, shall be posted only in the Mature Audiences section and shall be distributed only to people legally permitted to receive such content; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and (i) link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under this Agreement; (bb) are concurrently listed for trade on a web site other than Swaptree's (this does not prevent linking to or advertising a Swaptree item from another web site); or (cc) you do not have a right to link to or include.  Furthermore, you may not list any item on the Site (or consummate any trade that was initiated using our service) that could cause us to violate any applicable law, statute, ordinance or regulation, or that violates our current Prohibited, Questionable and Infringing Items.   

7.3  License
Solely to enable Swaptree to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information.  Swaptree will only use Your Information in accordance with our Privacy Policy.

7.4  Passwords
Use of this Site requires a password. You agree to maintain confidentiality of your password and are solely responsible all activities associated with its use, whether authorized or unauthorized. Sharing of account passwords with other persons is a violation of this agreement and may result in account termination.

If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number stored on the Site) you should notify Swaptree immediately of the problem to avoid possible liability for unauthorized charges to your account.


The Site contains robot exclusion headers.  Much of the information on the Site is updated on a real time basis and is proprietary or is licensed to Swaptree by our users or third parties.  You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission.  Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of Swaptree and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iv) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.


9.1  Integrity
You may not take any actions that may undermine the integrity of the feedback system.  We may limit the number of trades and items for trade you may place on the Site based upon the level of your feedback.  If you earn a net feedback rating below a level we deem to be unacceptable, your membership may be suspended, and you may be unable to list, trade or even login to the site.

9.2  Export
You acknowledge that your feedback consists of comments left by other users and a composite feedback number compiled by Swaptree, and that the composite number without the comments does not convey your full user profile.  Because feedback ratings are not designed for any purpose other than for facilitating trading between Swaptree users, you agree that you shall not market or export your Swaptree feedback rating in any venue other than an Swaptree operated website.

9.3  Import
We do not provide you the technical ability to import feedback from other (non-Swaptree operated) websites to Swaptree because a composite number without the corresponding feedback does not reflect your true online reputation within our community. .


Without limiting other remedies, we may limit your activity, immediately remove your trades or item listings, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.


We do not sell or rent your personal information to third parties for their marketing purposes without your explicit consent and we only use your information as described in the Privacy Policy.  We view protection of users' privacy as a very important community principle.  We understand clearly that you and your information is one of our most important assets.  We store and process your information on computers located in the United States that are protected by physical as well as technological security devices.  We use third parties to verify and certify our privacy principles.  Our current Privacy Policy is available at http://www.swaptree.com/WebFrmPrivacyPolicy.aspx. If you object to your Information being transferred or used in this way please do not use our services.


Swaptree reserves the right to terminate service at any time without notice. In the event of service termination, Site members will not be entitled to any compensation.


WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY.  WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.  This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.


IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).

OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100.  Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.


You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.


You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your trading on, listing, purchase, solicitation of offers to trade, and sale of items.


You and Swaptree are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.


This Site and the associated service are to be used for non-competitive purposes only. Use of the Site or associated service by competing businesses, affiliates, employees, or other associates is absolutely prohibited and constitutes a breach of this contract, giving rise to substantial damages.

If you are an owner, employee or other associate of a competing site (other than simply a member), you hereby agree that damages from the unlicensed visitation of this site are difficult to compute. Damages from breach of this competitor use provision shall therefore be set at $100 per unauthorized Site visit. You hereby agree that such damages are a reasonable estimate of actual damages and you waive your right to contest these damages in a court of law or other proceeding.


Except as explicitly stated otherwise, any notices shall be given by postal mail to Swaptree Attn: Legal Department (in the case of Swaptree) or to the email address you provide to Swaptree during the registration process (in your case).  Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid.  Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Swaptree during the registration process.  In such case, notice shall be deemed given 3 days after the date of mailing.


In the event a dispute arises between you and Swaptree, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly.  Accordingly, you and Swaptree agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties.  Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.

20.1  Binding Arbitration
For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, you or Swaptree may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required.  In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties.  Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

20.2  Court
Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Boston, Massachusetts, or where the defendant is located (in our case Boston, Massachusetts, and in your case your home address or principal place of business).  You and Swaptree agree to submit to the personal jurisdiction of the courts located within the county of Boston, Massachusetts.

20.3  Alternative Dispute Resolution
Alternatively, Swaptree will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Boston, Massachusetts or another location mutually agreed upon by the parties.  

All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the first party to file a Claim.  Should either party file an action contrary to this Section 18, the other party may recover attorneys' fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.



The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to specific services offered on the Site:

Privacy Policy: http://www.swaptree.com/WebFrmPrivacyPolicy.aspx

These policies may be changed from time to time and are effective immediately after we post the changes on the Site, except for the Privacy Policy for which we will provide you with thirty days prior notice.  In addition, when using particular services on the Site, you agree that you are subject to any posted policies or rules applicable to services you use through the Site, which may be posted from time to time.  All such posted policies or rules are hereby incorporated by reference into this Agreement. .


This Agreement shall be governed in all respects by the laws of the State of Massachusetts as such laws are applied to agreements entered into and to be performed entirely within Massachusetts between Massachusetts residents.  We do not guarantee continuous, uninterrupted or secure access to our services, and operation of the Site may be interfered with by numerous factors outside of our control.  If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.  You agree that this Agreement and all incorporated agreements may be automatically assigned by Swaptree in accordance with Section 19 "Notices", in our sole discretion, Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.  Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.  This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.  Sections 3 (Fees and Services) with respect to fees owed for our services, 4.3 (Release), 7.3 (License), 8 (Access and Interference), 14 (Liability Limit), 15 (Indemnity) and 19 (Resolution of Disputes) shall survive any termination or expiration of this Agreement. .


The services hereunder are offered by Swaptree Inc., located in Boston, Massachusetts.  If you are a Massachusetts resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.  

Commercially available parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors.

Disputes between you and Swaptree regarding our services may be reported to Customer Support by going to http://www.swaptree.com/WebFrmContactUs.aspx.  We encourage you to report all user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity.