Terms and Conditions of Use
- Who is bound by these Terms and Conditions of Use?
- The Expressions we use
These Terms and Conditions of Use ("Terms") bind each person who submits an Application to Register to SwapAce.
In these Terms unless the context indicates otherwise the following expressions have the following meanings:
- "SwapAce" means SwapAce Pty Limited ABN 74 111 117 410.
- "Authority" means any government, regulator, authority or body (of any kind) exercising powers or rights conferred by legislation.
- "User" means each person who has registered to use the services SwapAce provides on the Website and a reference to a "Trader" or "trader" within the SwapAce website also means a User.
- "User's Obligations" means all obligations imposed on Users under the SwapAce Documents.
- "Other User" means each person who is a registered User apart from You.
- "Transaction" means each and all of any discussions, exchanges, dealings agreements, arrangements and understandings between any persons by means of the Website.
- "You" means you (the User visiting the Website).
- "Website" means the website at www.SwapAce.com.
Other parts of speech and grammatical forms of a word or phrase defined in these Terms and Conditions have a corresponding meaning.
SwapAce provides an online service on the Website consisting of the provision of a platform which allows Users to auction, buy, sell, swap and trade goods and services as well as a medium by which Users may exchange information and meet Other Users.
Each User warrants:
- that the User has the power to enter into enforceable agreements;
- that any information supplied by the User to SwapAce is and will be true and complete at all times and each User agrees to inform SwapAce of any changes to any information supplied by the User to SwapAce within 7 days of the change;
- that the posting of any material to this Website by the User and the content of any material posted by the User may be lawfully posted by the User; and
- that all material posted to this Website by the User, including for the purpose of advertising or purchasing or bartering or swapping or offering services or accepting services, is true and correct and not inaccurate or misleading in any way;
A User must not take any action of any kind whatsoever, which interferes with the proper operation of the Website. A User must not copy or deal with or alter or modify any material on the Website except material posted to the Website by a User in accordance with these Terms.
Upon registration as a User You will nominate a discrete password and nominate a "User Name". You must keep your password and your User Name confidential at all times. You are totally responsible in every way for all material posted on the Website (and any other actions taken in respect of this Website) under, or by means of the use of, your User Name and your password. All material posted on the Website (and any other actions taken in respect of this Website) under, or by means of the use of, your User Name and your password may be recorded on this Website.
The User agrees to pay any applicable fees, for the services that they choose to use, as stated in the Fee Schedule which can be found at http://www.swapace.com/docs.php?p=fees.
SwapAce will notify changes to fees in the Fee Schedule 21 days before changes commence.
Material may be posted by means of text, graphics and pictures. Users must post material in the category most appropriate to the goods or services the User is offering or is seeking to acquire. Users must not post any of the following material on the Website:
- advertising or spam;
- professional advice;
- any material that is illegal, defamatory, indecent, threatening, misleading or otherwise contains illegal content;
- any program, virus, worm or similar matter that interferes with, or may interfere with the Website or its data or information in any way;
- any contact details (including an email address) anywhere within the Website except where expressly permitted, to do so; or
- any links/references to any other websites or references to any other websites, anywhere within the Website except where expressly permitted, to do so.
Each User acknowledges and agrees:
- SwapAce may at any time by notice posted on the Website change the SwapAce Documents and the User's Obligations with effect fourteen (14) days after the date of posting on the Website and if a User is not prepared to accept, and be bound by the changes the User may terminate its registration as a User;
- SwapAce does not offer or provide advice of any kind and does not offer any goods or services for itself but only offers facilities for the use of Users by which Users may auction, buy, sell, swap and trade goods and services as well as a medium by which Users may exchange information and meet other Users;
- SwapAce makes no representations or warranties:
- with respect to its services or any of the goods and services offered by any User by means of the Website; or
- in respect of the bona fides of any User or of the identity of any User;
- SwapAce may for the purpose of facilitating any transaction between You and Other Users disclose your identity and contact details;
- that without imposing any liability on SwapAce under these Terms or abrogating any other rights of SwapAce, SwapAce is not liable in any way for any matters outside of its direct control nor for the actions of You, Other Users or other persons;
- SwapAce makes no representations or warranties with respect to the capacity of any User to pay any amount to any Other User nor with respect to the truth of any statement, warranty or representation made by any User nor with respect to the value or quality or characteristics of any goods or services offered by any User;
- SwapAce makes no representation or warranty concerning any representation or statement made by any User in relation to goods or services offered by any User and without limitation is not liable for material posted on the Website by You or Other Users;
- SwapAce does not accept liability for, and is not liable or responsible for, and will not be liable or responsible for, the actions of any User nor any breach by a User of the Terms nor any terms or conditions of any Transaction or failure on the part of any User to perform any Transaction or any part of a Transaction;
- SwapAce may, at any time in its discretion:
- shut the Website down or suspend access to the Website for the purpose of improving, maintaining or altering it; and
- terminate the use of this Website on not less than 7 days' notice;
- in the event a User breaches any of the User's Obligations or does anything unlawful or misleading, that SwapAce may without reference to You and in its absolute discretion terminate the provision of its services and do all such things as it considers appropriate to prevent your gaining access to or using the Website;
- SwapAce may in its discretion publish, (or cease to publish), reproduce, use, adapt and manipulate all material posted on the Website by a User;
- that it consents to SwapAce disclosing "personal information" (as that expression is defined in the Privacy Act 1988) as SwapAce sees fit including to persons in and out of Australia;
- that SwapAce has no liability for the actions of Other Users and, without limitation, no liability to You if any Other User accesses or downloads any material published by You;
- if SwapAce exercises its rights under any of sub points 10(i), (j) or (k) You will not have any claim against SwapAce if it does so;
- it is responsible for all actions it takes in accessing, or in respect of, this Website and utilising the services of SwapAce and, further, releases SwapAce from any liability whatsoever arising out of any act or omission of any Other User;
- it will not to bring any action against SwapAce for the purpose of bringing or maintaining any claim against SwapAce based on any breach of any obligation, whether express or implied, on the part of any Other User;
- it may not in relation to, or in exercising any rights under, the Website, do anything which is fraudulent or in breach of any law or the rights of any person and, without limitation, by posting any material on the Website, must not be in breach of any law or obligation or duty owed to any person or do anything which is defamatory or illegal or inappropriate;
- it has determined to register on the Website of its own volition and it accepts that it does so at its own risk and, will not, make any claim against SwapAce in respect of, or hold, or seek to hold, SwapAce responsible for, or liable for, the actions of Other Users nor for any warranties, representatives, promises or statements of SwapAce whether express or implied;
- to indemnify SwapAce in respect of any claim of any nature brought by any person including any Other User against SwapAce arising out of any breach of the User's Obligations, or by any act or omission on your part or the breach of any law or obligation by You;
- SwapAce has no liability for any infringement of moral rights and You agree to indemnify SwapAce in respect of any claim for any infringement of moral rights;
- it will not do anything which would cause any damage or interference to the Website;
- it will not do anything which may:
- be illegal; or
- render SwapAce liable to any other person or Authority; or
- render SwapAce liable for any breach of any law or obligation to any person; or
- may or will defame SwapAce or adversely affect the reputation of SwapAce; or
- in any way interfere with the conduct of SwapAce's business;
- it will honour every obligation under, and properly perform, every Transaction to which it is a party;
- it must not advertise any goods or services which SwapAce, at any time, stipulates, on the Website, must not be advertised or traded;
- it must not advertise any Restricted Items or any Prohibited Items. The "Restricted Items" and the "Prohibited Items" are listed in the Schedule below;
- a User may, in the discretion of the User, lodge complaints about anything done or omitted to be done by any other User;
- the relationship between SwapAce and each User is that of the relationship between independent contractors;
- covenants and agrees to indemnify SwapAce, and keep SwapAce indemnified, against any loss, damage, cost, charge or expense whatsoever incurred or suffered in connection with, or as a consequence of, any breach by, or attempted breach by, the User of the User's Obligations and the User will pay on demand, by SwapAce, to SwapAce any sums claimed by SwapAce pursuant to this indemnity;
- the Trade Practices Act (Cth), and other statutes (together and separately "the Legislation") may impose warranties, terms and conditions or impose obligations on SwapAce which cannot, or can only to a limited extent, be excluded, restricted or modified and the User agrees, to the extent permitted by law:
- any warranties of SwapAce (whether express or implied under the Legislation), are to the extent possible, excluded;
- such conditions that exclude or limit SwapAce's liability shall apply;
- subject to (i) and (ii) the User's Obligations shall be construed subject to the Legislation and any inconsistency between the Legislation and the User's Obligations shall be read down to conform to the Legislation; and
- that SwapAce does not, and cannot guarantee or warrant, the quality or suitability of its services;
- SwapAce's liability for a breach of a condition or warranty implied under the Legislation is, to the extent permissible under that Legislation, limited to:
- in the case of goods, any one or more of the following:
- replacement of the goods and the supply of the equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; and
- the payment of the cost of having the goods repaired; and/or
- in the case of services:
- the supply of the services again; or
- the payment of the cost of having the services supplied again;
- SwapAce shall not be liable, in any way, where You suffer any damage as a consequence of any matter beyond the control of SwapAce;
- to inform themselves of SwapAce's fees before using SwapAce's services by checking SwapAce's Fee Schedule at http://www.swapace.com/docs.php?p=fees.
For the purposes of these Terms it is agreed:
- references to any person in these Terms shall include the legal personal representatives, executors, administrators, successors and permitted assigns of that party;
- words importing the singular shall include the plural and vice versa;
- words importing a gender shall include other genders;
- references to a person shall be construed as references to an individual, firm, partnership, joint venture, body corporate, association (whether incorporated or not), ministerial corporation, government and governmental, semi-governmental and local authority or agency;
- a provision of, or a right created under, these Terms may not be waived or varied except in writing signed by the party or parties to be bound;
- every covenant or agreement or undertaking expressed or implied by which more persons than one covenant, promise or agree to undertake to perform an obligation in terms of this Terms shall bind such persons jointly and each of them severally; and
- a reference to a covenant or agreement or undertaking expressed or implied in favour of more persons than one shall be construed as a reference to each such persons to be benefited jointly and each of them severally;
- if any part of the SwapAce Documents containing the User's Obligations is prohibited, void, voidable, illegal or unenforceable under the laws of any relevant jurisdiction then that part is severed for the purposes of that jurisdiction only but without affecting the continued operation of the rest of the User's Obligations in that jurisdiction or the operation of the SwapAce Documents containing the User's Obligations in any other jurisdiction.
- this agreement and any use of/access to/ transaction arising out of the use of the Website is governed by, and construed in accordance with, the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales.
The Copyright in these Terms and Conditions is held by SwapAce Pty Limited ABN 74 111 117 410. No trade marks of SwapAce Pty Limited ABN 74 111 117 410 may be used by any other person. No intellectual property of SwapAce Pty Limited ABN 74 111 117 410 may be used by any other person.
- Adult Materials and Adult Services
"Prohibited items" means each and all of, but is not limited to:
- Alcohol & Tobacco [unless the User is licensed to deal in, them]
- Animals & Wildlife Products [where it is illegal to deal with, or in, them]
- Artefacts & Heritage Items [where it is illegal to deal with, or in them]
- Computer Software [without the User having the requisite right to do so]
- Drugs & Drug Paraphernalia
- Electronics Devices/Equipment [without the User having the requisite right to do so]
- Fireworks [where it is illegal to deal with, or in, them]
- Food [where it is illegal to deal with, or in, them]
- Gaming Devices [where it is illegal to deal with, or in, them]
- Human Parts & Remains [where it is illegal to deal with, or in, them]
- Replica and Counterfeit Items [where it is illegal to deal with, or in, them]
- Stolen Property
- Weapons, Knives, Firearms, Ammunitions, Replicas and Militaria [where it is illegal to deal with, or in, them]
- Any other substance, material or services prohibited by law or which cannot lawfully be offered by the User.