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TOS Agreement	I accept the Terms of Service below. >Terms of Service<
TERMS OF SERVICE WELCOME Welcome to SwapMars, Inc (“SwapMars”). The following Terms of Service, which include the Site Policies, are a contractual agreement between you and SwapMars. The Terms of Service together with the Site Policies are collectively referred to as the "Agreement" and as the "Terms of Service." Certain defined terms used in this Agreement are available here. By visiting or using the services available from the domain and sub-domains of www.swapmars.com (the "Site"), you are agreeing to be legally bound by the Agreement. We suggest that you consult the Terms of Service and the linked information regularly for updates. We reserve the right to revise the Terms of Service and all linked information from time to time in our sole discretion by updating this posting or any linked information. We are under no obligation to contact you directly regarding any updates or changes to the Agreement. Unless otherwise provided in such revision, the revised terms will take effect when they are posted. ABOUT SWAPMARS SwapMars makes the Site available as an online venue where Users (as such terms are defined below) locate and collaborate with each other and take advantage of the following services (collectively, the "Services"): Connection Services. The Site is a venue where: (1) Users post items to receive trade proposals or conduct searches and locate, connect with, choose, and engage Swap Partners (a defined term below) directly. In providing this venue, SwapMars does NOT source or deliver items posted by Users or verifies the legitimacy of the listings and items. SwapMars only provides the venue for Users to find and contract with each other for items. See the Site Policies for further descriptions of Connection Services. Transaction Services. The Site is a venue where SwapMars provides to Users certain collaboration, feedback, online swapping tools and other services (collectively, "Transaction Services"). MEMBER ELIGIBILITY Our Services are available only to legal entities and individuals who can form legally binding contracts. To register for an Account (a defined term below) with SwapMars and become a Member (a defined term below), you must accept all of the terms and conditions in, and linked to, the Terms of Service. SwapMars reserves the right in its sole discretion to refuse, suspend, or terminate service to anyone. YOUR ACCOUNT To become a Member and use the services available from the Site you must register for an "Account" (a defined term below). You will provide true, accurate and complete information as prompted by the registration form, and update such information to maintain its truth, accuracy and completeness. You must safeguard the Member ID and password you use to access this Site. We may rely on any use of the Site with your Member ID and password as authorized by you. By registering and using our Services, you acknowledge and agree to the release of your account information to other Users or a Swap Partner in order to facilitate swap Transactions (a defined term below) (for instance, your mailing address for your Swap Partner to send you an Item (a defined term below)) as determined by the sole discretion of SwapMars. LEGAL RELATIONSHIPS SwapMars Provides the Venue SwapMars makes the Site available as an online venue where Users locate and connect with each other and take advantage of the Services. SwapMars is not involved in the dealing between Users, or in the User’s delivery of the Item to the Swap Partners. SwapMars has no control over and does not guarantee the quality, safety or legality of Items advertised, the truth or accuracy of Listings (a defined term below), the qualifications, background, abilities, or information of Members, the ability of Users to deliver the items, the ability of User and Swap Partner can or will actually complete a transaction. Performance of Member Contracts Upon acceptance of a trade, the User agrees to the trade, and the User agrees to deliver the item(s) posted to the Site. Users each covenants and agrees to act with good faith and fair dealing in performance with the Site Policies. Furthermore, the Users each acknowledges and agrees that the value, reputation, and goodwill of the Site depend on their performance of the foregoing covenants and agreements. The Users therefore agree that SwapMars has the right to take such actions with respect to the trade, including without limitation, Item modification, suspension, termination, or legal actions, as SwapMars in its sole discretion deems necessary to protect the value, reputation, and goodwill of the Site. Items By registering as a Member, you acknowledge and agree that whenever you use our services you locate, choose, connect with and engage directly other Users of the Site to receive or deliver Items in accordance with the Terms of Service. SwapMars is not involved in the dealing between Users for Items. SwapMars is not a party to any contract for any trade of Items or any other Services on the Site. All rights and obligations for the trade of any items are solely between the Users. Each User must look solely to the other for enforcement and performance of all the rights and obligations arising from Items in accordance with the Terms of Service and any other terms, conditions, representations, or warranties associated with such dealings and Listings. Taxes, Reporting and Legal Responsibilities Each Member is solely responsible for satisfying any taxes(including State, Local, and Federal Tax) withholding and other legal requirements under applicable law, including without limitation those applicable to Items traded or listed on the Site. Directory of Items The Site contains a directory of Items. The directory is populated with information from third party sources, from Members themselves and from other Users. SwapMars provides this directory as a convenience and does not confirm or verify the information contained in it. Member, Verification and Monitoring SwapMars is not responsible for and does not monitor member information and content for accuracy or reliability. Visitor registers with the Site to become a member and puts in Member information including shipping addresses (later which may be used as the location of where the Item is shipped to in a trade). SwapMars does not confirm or verify if a Member’s information or representation is accurate or legitimate. Links The Site may contain links to other Web sites or resources. You acknowledge and agree that SwapMars is not responsible or liable for: (i) the availability or accuracy of such sites or resources; or (ii) the content, advertising, or products on or available from such sites or resources. The inclusion of any link on the Site does not imply that we endorse the linked site. You use the links at your own risk. No Agency The Terms of Service and any registration for or subsequent use of this Site will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and SwapMars, except and solely to the extent expressly stated. Access and Interference 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: (a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site without the prior express written permission of SwapMars and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; or (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site. WARRANTY DISCLAIMER THE SERVICES PROVIDED BY SWAPMARS HEREUNDER ARE PROVIDED "AS IS," AS AVAILABLE, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEB SITE BY ANY THIRD PARTY. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. LIMITATION OF LIABILITY Point Points can be earned and accumulated by Members through trades with other Users on the Site. SwapMars cannot guarantee the Item will be delivered to a Member even though Points may already have been exchanged and given. You acknowledge and agree that SwarMars is not responsible and reliable for: loss of points due to 1) a technical issue with the Site and system, 2) attack on the Site or system through malicious attacks, 3) any hardware or software issues and failures, and 4) any usage of the Site not outlined in this Terms of Service. You also acknowledge that points have no monetary value (less than 1/100 of a cent) and in that you will not hold SwapMars responsible for the loss or the inaccurate reporting of points. Points are used to facilitate the trading of items and the points needed to exchange for an item of the same monetary value can change over time. Upon termination of the Site or dissolution of SwapMars, your Points will be forfeited and will be deemed worthless. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY OTHER MEMBER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF ITEMS, LOSS OF INFORMATION OR LOSS OF POINTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED $100. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. RELEASE If you have a dispute with another Member, you release SwapMars (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, arising out of or in any way connected with such dispute. You hereby waive any analogous law in any other applicable jurisdiction 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." INDEMNITY You agree to defend, hold harmless and indemnify SwapMars from and against any and all losses, costs, expenses, damages or other liabilities incurred by SwapMars from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against SwapMars: (a) in connection with your use of the Services (b) resulting from: (i) your use of the Site (ii) your decision to supply information via the Site, including personal information; (iii) your decision to submit listings and accept trades from other Members; (iv) any breach of contract or other claims made by Members with which you conducted trades through the Site; (v) your breach of any provision of this Agreement; (vi) any liability arising from the tax treatment of trade (vii) any negligent or intentional wrongdoing by any Member; (viii) your obligations to a Swap Partner. Any such indemnification shall be conditioned on our: (a) notifying you in writing of electronic (of which communication is one form) any such claim, demand, action, cost, liability, loss or threat of any thereof; (b) cooperating with you in the defense or settlement thereof; and (c) allowing you to control such defense or settlement. We shall be entitled to participate in such defense through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise. INTELLECTUAL PROPERTY License and Site Access Subject to and conditioned on compliance with the Terms of Service, SwapMars grants you a limited license to access and, if you are a Member, to use this Site internally for the purpose of receiving the Services available and authorized from this Site. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost or otherwise use any content of this Site in any way for any public or commercial purpose without prior written consent of SwapMars or the rights holder. You must not use any content of this Site on any other Web site or in a networked computer environment for any purpose except your own internal viewing. You will not attempt to reverse engineer or attempt to interfere with the operation of any part of this Site unless expressly permitted by law. This Site or any portion of this Site may not be reproduced, duplicated, copied, sold, resold or otherwise exploited for any commercial purpose that is not expressly permitted by SwapMars. Reservation of Rights; Limited Licenses SwapMars and its licensors retain all of its right, title and interest in and to all patent rights, inventions, copyrights, know-how and trade secrets relating to the Site. The SwapMars logo and name are trademarks of SwapMars, and may be registered in certain jurisdictions. All other product names, company names, marks, logos and symbols on the Site may be the trademarks of their respective owners. Except as expressly stated above, nothing in the Terms of Service confers any license under any of SwapMars's or any third party's intellectual property rights, whether by estoppel, implication or otherwise. MEMBER SERVICE If you have any questions, suggestions, reports of problems or complaints regarding any SwapMars Services, your use of the Site, the conduct of or by any Member, please contact Member Service. NOTICES AND COMMUNICATIONS Unless you otherwise indicate in writing to Member Service, SwapMars will communicate with you by email or by posting communications on this Site. You consent to receive communications from us electronically and you agree that these electronic communications satisfy any legal requirement that such communications be in writing. You will be considered to have received a communication when SwapMars sends it to the email address you have provided to SwapMars on this Site, or when SwapMars posts such communication on this Site. You must keep your email address updated on this Site, and you must regularly check this Site for postings. If you fail to respond to an email message from SwapMars regarding violation, dispute or complaint within a reasonable time as determined solely by SwapMars, SwapMars will have the right to terminate or suspend your Listing, trades or your registration. All notices to SwapMars intended to have a legal effect concerning this Agreement must be in writing and delivered either in person or by a means evidenced by a delivery receipt. RESOLUTION OF DISPUTES BETWEEN MEMBER AND SWAPMARS If a dispute arises between you and SwapMars, our goal is to resolve such dispute quickly and cost effectively. Accordingly, you and SwapMars agree that we will resolve any claim or controversy at law or equity that arises between us out of this Agreement or the SwapMars Services (a "Claim") in accordance with this section entitled "Resolution of Disputes Between Member and SwapMars." Before resorting to these alternatives, you agree to first contact us directly to seek dispute assistance by going to Member Service. Law and Forum for Disputes The Terms of Service are governed in all respects by the laws of the State of New York without giving effect to any principle that may provide for the application of the law of another jurisdiction. You agree that any claim or dispute you may have against SwapMars must be resolved by a court located in Kings County, New York, New York or as described in the Arbitration Option paragraph below. You hereby submit to the personal jurisdiction of the courts located in Kings Country, New York for the purpose of litigating all such claims or disputes. Any cause of action you may have with respect to this Site must be commenced within 30 days after it arises, or the cause of action is barred. Arbitration Option For any claim arising between you and SwapMars (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. A party electing arbitration must initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) if an arbitrator renders an award the party receiving the award may enter any judgment on the award in any court of competent jurisdiction. Improperly Filed Claims Should you file a claim contrary to this section entitled "Resolution of Disputes Between Member and SwapMars," SwapMars will be entitled to recover attorneys' fees and costs provided that SwapMars has notified you in accordance with the Terms of Service of the improperly filed claim, and you have failed to promptly withdraw the claim. TERMINATION AND SUSPENSION This Agreement shall become effective upon your acceptance or your use of the Site, and shall continue until terminated by SwapMars or you as provided for under the terms of this section. Unless otherwise agreed to in writing between the parties, either party may terminate the Agreement at any time upon notice to the other party. In such event, (i) SwapMars shall no longer be obligated to perform those SwapMars Services necessary to complete any open transaction between you and another Member. Without limiting SwapMars's other remedies, we may issue a warning, temporarily suspend, indefinitely suspend or terminate your registration or a Listing, Transaction (a defined term below), and Points accumulated and refuse to provide any or all Services to you if: (a) you breach any terms and conditions of the Terms of Service or the linked policies and information incorporated herein by reference, including our written policies and procedures posted on the Site; or (b) we believe in our sole discretion that your actions may cause legal liability for you, our Members or for SwapMars or (c) you actions are contrary to the interests of the Site or the SwapMars user community. Once temporarily suspended, indefinitely suspended or terminated, you may not continue to use the Site under the same Account, a different Account or reregister under a new Account. Without limiting SwapMars's other remedies, to the extent you engage in actions or activities which circumvent the SwapMars Site and Terms of Service you agree to reimburse SwapMars for all losses and costs (including any and all SwapMars employee time) and reasonable expenses (including attorney fees) related to investigating such breach and collecting such remedies. When your membership is terminated, you may no longer have access to data, messages, files and other material you keep on the Site. The material may be deleted or archived along with all your previous posts, Listings, Transactions, Points, and all data and information associated with the membership. NOTIFICATION OF SWAPMARS MEMBERS You acknowledge and agree that the value, reputation and goodwill of the Site depend on transparency of Member registration status to all Members, including both yourself and other Members who are participating in Trades with you. You therefore agree as follows: IN THE EVENT SWAPMARS SUSPENDS OR TERMINATES YOUR REGISTRATION, SWAPMARS WILL HAVE THE RIGHT BUT NOT THE OBLIGATION TO (1) NOTIFY OTHER MEMBERS ENGAGED IN A TRADE WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR TERMINATED REGISTRATION STATUS AND (2) PROVIDE THEM WITH SUMMARY REASONS FOR THE ACTION. DISCLOSURES SwapMars, located in New York, is the provider of the electronic commercial service on this Site. Members are notified, via this Site, in advance regarding any applicable service charges. Upon your request, you may have this Agreement sent to you by email. Please feel free to contact SwapMars to resolve a complaint regarding any aspect of service relating to this Site by writing to Member Services. CERTAIN DEFINED TERMS As used throughout the Agreement: "Account" means the SwapMars Account you open when you register to become a Member and use the Services. “Item” means any item listed by a Member or SwapMars. “Listing” means the information posted on an Item by the Member or SwapMars. "Member" means a person or legal entity that registers for an Account. “Points” means the points accumulated by a User through transacting with other Users of the Site. "SwapMars Services" means any of the above Services that are delivered by SwapMars. "Swap Partner" means a Member that is involved in a transaction/trade with you. "Swap Services" means all swaps and other items delivered by Swap Partners. “Trade” has the meaning of Transaction as defined above. “Transaction” means an exchange, swap or trade of Items and Points (if applicable) between two Users. "User" means (1) a person who is a Member, using the Site on his or her own behalf, or (2) a person who is using the Site on behalf of a Member that is a company or organization. "Visitor" means a person who is only visiting the Site, not a Member or User. "You" means a Visitor or Member accessing the Site or using the Services on his or her own behalf; or, if the Services are used on behalf of a company or organization, "you" means the Member for which the Services are used and the User who accesses the Site on behalf of such Member (and such User represents that he or she has the authority to do so on the Member's behalf). GENERAL You are responsible for compliance with applicable local laws, keeping in mind that access to the contents of this Site may not be legal for or by certain persons or in certain countries. SwapMars will not be considered to have modified or waived any of our rights or remedies under the Terms of Service unless the modification or waiver is in writing and signed by an authorized representative of SwapMars. No delay or omission by SwapMars in exercising its rights or remedies will impair its rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. If any part of the Terms of Service is held to be unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect. You will not transfer, assign or delegate your rights or obligations (including your Account) under the Terms of Service to anyone without the express written permission of SwapMars, and any attempt to do so will be null and void. SwapMars may assign this Agreement in its discretion. Neither of the parties to this Agreement shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay. The Terms of Service and all documents referenced in the Terms of Service (including the Site Policies listed and available by hyperlink below) comprise the entire agreement between you and SwapMars with respect to the use of this Site and supersede all prior agreements between the parties regarding the subject matter contained herein as well as any conflicting or inconsistent terms in any Web site that link to or are linked from this Site. Site Policies The Agreement hereby incorporates all terms and conditions, rules, policies, and guidelines on the Site. Service Provider SwapMars acts as a service provider by creating, hosting, maintaining, and providing the Service to you via the Internet. SwapMars does not have any control over the Services used nor the Swap Partner you are dealing with will actually complete the transaction. Nothing in the Services will be deemed to constitute SwapMars your agent with respect to any Swap Partner trades through the Site, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. SwapMars provides certain information to the Members of the Site including historical Transactions, Points, Listings and other Account information. You acknowledge that SwapMars is under no obligation to provide the aforementioned information to Members or to keep such information on record and SwapMars has been providing such information voluntarily. SwapMars can withhold and not provide such information (historical Transactions, Points, Listings and other Account information) to Members without first obtaining consent from Members or direct notification to Members. Using the Points Service To request Points from a Swap Partner, you must use the Points Services and you must follow the instructions on the Site. As a Member, you acknowledge and agree that when you receive Points from a Swap Partner using the Points Services, such instruction: (1) is a representation that you have completed, or have every intention of completing, the applicable Services fully, satisfactorily, and timely. Once SwapMars has charged the Swap Partner for Points, SwapMars may, in sole discretion, give back the Points if it is believed the above representations have been breached. To give a Swap Partner Points, you must use the Points Services and you must follow the instructions and links on the Site. As a Member, you acknowledge and agree that when you instruct SwapMars to give Points to a Swap Partner using the Points Services, such instruction: (1) is a representation that you agree to the terms of the Trade with the Swap Partner, and (2) constitutes an irrevocable instruction to SwapMars to give the Swap Partner the Points. Once SwapMars has credited the Points to the Swap Partners, SwapMars may not be entitled to demand return of the Points if the Swap Partner has no Point balance. Charge-backs If SwapMars discovers erroneous or duplicate transactions, or SwapMars receives a claim of non-performance from the Swap Partner for completion of a Transaction or, for any reason, Swap Mars may in its sole discretion obtain such reimbursement by charging the applicable Member’s Account, deducting amounts from future Point payments owed to Swap Partner. Disputes Between Swap Partners Any disputes in connection with Trades and Listings by Members or Points given or received remain between such the Member and the Swap Partner. You further acknowledge that SwapMars will not be obligated to take any other action or refrain from taking any other action toward resolving any such dispute. SwapMars may, at its sole discretion, but shall not be required to take appropriate action against the Swap Partner in order to protect the well being of the community. Reservation of Rights SwapMars reserves the right to seek reimbursement from any Users if SwapMars discovers erroneous or duplicate transactions or any other transactions that would cause a manipulation to the program or technology. SwapMars may obtain such reimbursement by editing, deleting, locking, or suspending the User’s account and account information including deducting Points from the User or by any other means as deemed appropriate to protect the well being of the community Questions If you have any questions, suggestions or reports of problems regarding the Site, please contact Member Service. POINTS TERMS AND CONDITIONS Users may establish “Points” with SwapMars at the Site, to provide for the retention, administration, and controlled release of the Points in accordance with the Terms of Service and Site Policies and subject to these Points Terms and Conditions. Funding Points When a User submits a Funding Approval (defined as the release of Points to a Swap Partner) on the Site, a User will be deemed to have irrevocably authorized SwapMars to use the Service to debit (deduct points) the User’s account as appropriate. In the event SwapMars cannot collect such points for any reason, SwapMars will have no obligation with respect to the creation or funding of the Points or any addition to such Points. SWAPMARS WILL HAVE NO OBLIGATION WITH RESPECT TO THE CREATION OR FUNDING OF THE POINTS OR ANY ADDITION TO SUCH POINTS. Funding Approvals are Final User’s Submission of Funding Approval for Points constitutes User’s agreement to give the amounts. User authorizes SwapMars to debit against User’s Account. Such funding, once authorized, ARE FINAL, and amounts in the Points will be released only pursuant to these Points Terms and Conditions. Points are Monetary Valueless (less than 1/100 cent for all points in the User’s account) YOU ACKNOWLEDGE THAT POINTS IN YOUR USER ACCOUNT ARE MONETARY VALUELESS AND VALUELESS IN GENERAL. You agree that you will not receive consideration for the Points in the Points Account. SwapMars may edit (crediting or debiting) or delete points from your account without notification to the User. Points can also be created, credited or debited to a Member’s account or an account affiliated with SwapMars without reason at the sole discretion of SwapMars. Release and Delivery of Amounts in Points Account SwapMars is authorized to and will release applicable Points in the Account (each portion a "Release") to Users only upon approval of the Release of Points on the Site. Users authorize SwapMars to use the service to deliver the amount of any Release, and to withhold from Swap Partner those amounts SwapMars is entitled to withhold pursuant to the Service. RELEASES ARE FINAL Your Authorization of release of any Point amount in the Account constitutes your agreement to release such amounts from the Account. Such releases, once authorized, ARE FINAL. Service AGENT SwapMars undertakes to perform only such duties as are expressly set forth in these Terms of Service and no other or further duties will be implied. SwapMars will have no liability under and no duty to inquire as to the provisions of any agreement other than the Agreement. SwapMars will be under no duty to inquire into or investigate any agreement or communication between Users and Swapping Partners, even if uploaded to the Site. SwapMars may rely upon and will not be liable for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. SwapMars will be under no duty to inquire into or investigate the validity, accuracy or content of any such document. SwapMars will have no duty to solicit any payments or Releases which may be due to or from any Account. SwapMars may execute any of its powers and perform any of its duties under this Agreement directly or through agents or attorneys (and will be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. SwapMars will not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons. In the event that SwapMars is uncertain as to its duties or rights hereunder or receives instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it will be entitled to refrain from taking any action and its sole obligation will be to keep safely all property held in Account until it is directed otherwise in writing by Users or by a final order or judgment of an arbitrator or court of competent jurisdiction. SUCCESSION SwapMars may resign and be discharged from its duties or obligations under the agreement without giving notice to the Users and Visitors. Any corporation or association into which SwapMars may be merged or converted or with which it may be consolidated, or any corporation or association to which all or substantially all the online marketplace or Service business of SwapMars may be transferred, will succeed to all the rights and obligations of SwapMars as service agent under this Agreement without further act or notice. Term and Termination of Account SwapMars reserves the right to terminate the Site, for any reason without notice to the Users. Upon such termination, SwapMars is under no obligation, legal or otherwise, to retain records of Members’ Accounts, Transaction history, Listing, Points or any other Member information or to continue to assist in the completion of any Listing or Transaction. Notice of Requested Order If the User intends to obtain an order from any arbitrator or any court, which order might direct SwapMars to take, or refrain from taking any action with respect to a Trade, that party will: (1) give SwapMars at least five business days prior notice of the hearing; (2) include in any such order a provision that, as a precondition to SwapMars's obligation, SwapMars be paid in full for any amounts to which SwapMars would otherwise be entitled; and (3) be paid for the reasonable value of the Services to be rendered pursuant to such order. No Third Party Rights These Terms of Service, Site Policies and other conditions are intended solely for the benefit of Users, SwapMars, and their respective permitted successors and assigns, and no other person or entity will have or acquire any right by virtue of these Terms of Service, Site Policies and other conditions unless otherwise agreed to by the Users and SwapMars. REGISTRATION INFORMATION You agree to provide true, accurate and complete information as prompted by the Registration form, and to update this information to maintain its truthfulness, accuracy and completeness. SwapMars may suspend or terminate your Account if information you provide is not complete or accurate. SAFEGUARDING YOUR PASSWORD You agree to safeguard the Username and password you use to access this Site. You authorize us to assume that any person using the Site with your User ID and password either is you or is authorized to act for you. Further, your SwapMars Account (including feedback) and User ID may not be transferred or sold to another party. POSTING INFORMATION OR CONTENT You agree to provide true, accurate and complete information whenever you post any information or content on the Site (including but not limited to posting an offer for a trade, posting a Listing, posting your profile and providing feedback). You agree to use good judgment when posting information, remarks or other content regarding other Users, Members, Swap Partners, Visitors, SwapMars or any other third party. You understand that you may be held legally responsible for damages suffered by other Users, Members, Swap Partners, Visitors, SwapMars or any third party as a result of legally actionable or defamatory comments, remarks or other information or content which you post to the SwapMars Site. Under federal law (specifically, the Communications Decency Act of 1996), SwapMars is not legally responsible for any remarks, information or other content posted or made available on its Site by any User or third party, even if such information or content is defamatory or otherwise legally actionable. SwapMars is not responsible for and does not monitor or censor content for accuracy or reliability. SwapMars reserves the right to remove or restrict access to any information, content or item posted or made available on the Site in its sole discretion, or if ordered to do so by a court, or if SwapMars considers such information or content to be in violation of the Terms of Service. You agree NOT to do any of the following on the Site: • Post any Item, submit any offer or trade, or otherwise use SwapMars to transmit any content or conduct any transaction that would violate any applicable law or regulation in the U.S. and any other country. • Post any Items that are fake, posted without the intention to award or complete the trade or posted only to receive swapping information. • Post any Item, offer, proposal for a trade, deliverable or transmit any content that infringes a third party's intellectual property rights, license rights, the terms and conditions of use of such third party's Web site or copyrighted materials or such third party's rights of publicity or privacy. • Post any Item, offer, proposal for a trade, deliverable or transmit any content related to or containing any adult or sexually explicit material. • Post Items related to bulk email or spam, including but not limited to bulk email hosting, scripts, active code, programs, proxies, lists and relay servers. • Post advertisements, solicitations or offers of full-time employment. • Post false or misleading information about an item. • Post logos, seals or slogans from third parties on the Site unless such material is provided by SwapMars or an SwapMars partner, or you have received express written permission from SwapMars to display such third-party logo, seal or slogan. • Post or transmit any content that is profane, vulgar, racist, offensive, threatening, harmful, abusive, defamatory or disparaging. • Post or transmit unprofessional or offensive comments about a User, Member, Swap Partner, Visitor, SwapMars or any third party. • Suggest or solicit another User to contact you directly in order to buy or sell Items outside of SwapMars. • Access, tamper with or use non-public or non-authorized areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution. • Tamper with postings of other Users, Members, Swap Partners or SwapMars. • Solicit or gather any User's or Member's information available from the Site, such as other Usernames, email addresses, and mailing addresses for any commercial or business purposes or to transmit any unsolicited advertising, junk mail, spam or chain letters. • Do anything which would create or impose an unreasonable or disproportionately large burden or load on the Site. • Use robots, spiders, scrapers or other automated means to access information in our Site for any purpose without express written permission from SwapMars. • Post or introduce software on the Site that: (i) is designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of this Site or any other software, firmware, hardware, computer system or network (sometimes referred to as "viruses" or "worms"); (ii) would disable or impair this Site or any other software, firmware, hardware, computer systems or networks in any way where such disablement or impairment is caused by the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral (sometimes referred to as "time bombs," "time locks" or "drop dead" devices); (iii) would permit you or any other person to access this Site or any other software, firmware, hardware, computer systems or networks to cause such disablement or impairment or transmit information (sometimes referred to as "traps," "access codes," or "trap door" devices, or "spyware"); or (iv) which contains any other similar harmful, malicious or hidden procedures, routines or mechanisms which would cause such programs to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications or otherwise interfere with operations. • Post Items that violate the Terms and Conditions of other companies. • Frame or link to the Site except as permitted in writing by SwapMars. • Impersonate or misrepresent your affiliation with any person or entity. • Repeat any action after you receive warning or request to desist from SwapMars, whether or not that action is explicitly prohibited in the policies stated on the Site. • Fail to respond to an email from SwapMars regarding violation, dispute or complaint within two business days. • Use the Site if you are not able to form legally binding contracts, are under age or are temporarily or indefinitely suspended from our Site. • Take any action that may undermine the feedback or ratings systems (such as importing or exporting feedback information off the Site, or using feedback as an extortion mechanism). • Copy, modify or distribute content from the Site, except for your own information and use, without the prior express written permission from SwapMars. • Select a Swap Partner on the basis of religion, sex or race. • Violate a request by SwapMars to not post Items deemed by SwapMars in its sole discretion to be contrary to the interests of the Site or the SwapMars User community. • Violate any other policies stated on the Site. Violation of these rules may result in suspension, termination or modification of your Account, Items or Listings in addition to all other remedies available to SwapMars or other Users or Members. If you are aware of a potential violation, please contact Member Service. In order to operate the Site, SwapMars must have certain rights. Consequently, when you post information, text, files, links, attachments, software or other materials to publicly visible areas of the Site, you are granting, or warranting that the owner of such content has expressly granted a worldwide, royalty-free, perpetual, irrevocable, fully sub-licensable, non-exclusive right to use, reproduce, modify, transmit, distribute, perform, display and delete such content (in whole or in part) and/or to incorporate such content in other works in any form, media or technology now known or later developed. SwapMars, with sole discretion, can delete, edit, suspend and lock your Account or any Account information without notice. USER OBLIGATIONS You agree to: (a) abide by the Terms of Service and the processes and procedures described throughout the Site; (b) be responsible for your use of SwapMars and swapping of Items; and (c) perform your obligations and complete the transaction as specified by the terms of your trade, or proposal or your agreed upon trading terms, whichever is more recent, unless such transaction is prohibited by law or by the Terms of Service. Upon acceptance of a swap, you agree to deliver the Item if you are the User providing the item or provide the points if you are the Points provider with the terms agreed to by the parties. Ownership of Items By posting an Item on the Site for trading, you agree that you have all rights and ownership to the Item free and clear and that after completion of the swap, your rights and ownership of the Item will be transferred fully to the Swap Partner. You will no longer retain rights and ownership of the Item after the completion of the trade. COMMUNICATION SwapMars encourages open, complete and professional communication between Swap Partners and Members. Swap Partners and Members can use the email link, as well as telephone to clarify item descriptions or any specific requirements. Open communication helps Swap Partners develop relevant information and Users make informed decisions. RATING AND FEEDBACK SYSTEM You acknowledge and agree that the Site will contain public feedback from Users with whom you have transacted. You acknowledge that feedback results for you may consist of comments and ratings left by other Users and that SwapMars may calculate a composite feedback number based on these individual ratings. Users agree to be rated by Swap Partners along several criteria, as determined by SwapMars. SwapMars provides its feedback and rating system as a means through which Users can express their opinions publicly, and SwapMars does not monitor or censor these opinions or investigate any remarks posted by Users for accuracy or reliability unless a User brings the posting to SwapMars's attention or deemed inappropriate by management of SwapMars. You may be held legally responsible for damages suffered by other SwapMars Users or third parties as a result of these remarks if a court finds that these remarks are legally actionable or defamatory. Under federal law, SwapMars is not legally responsible for any feedback or comments posted or made available on this Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. You agree to report violations or abuses of our rating and feedback system immediately by contacting Member Service, and agree not to take any actions that undermine the integrity of the feedback system, including but not limited to the following: • Leaving fake feedback for yourself or another User or Member such as using a secondary Username or other SwapMars members to artificially raise the level of your own feedback or create negative feedback for another User or Member. • Feedback threats such as demanding another User or Member to perform a trade by threatening to leave negative feedback or withholding deliverables of points until another User or Member agrees to leave positive feedback or no feedback. • Feedback solicitation such as offering to swap an Item in exchange for good feedback, trading feedback undeservedly or buying feedback. In order to protect the integrity of the feedback system and protect Users from abuse, SwapMars will consider removing or modifying feedback under the following scenarios: • Feedback or information posted seeks to elicit or solicit any User's contact information, such as other Users' email addresses, for any non-SwapMars related commercial or business purposes, or to transmit any unsolicited advertising, "junk mail," "spam," or "chain letters." • Feedback or information posted contains language that is profane, vulgar, racist or contains adult material. Insulting or inflammatory feedback is strongly discouraged and may be removed. • Feedback or information posted is shown to have been left by any User who is in violation of SwapMars's Terms of Services, or by or for a User who has conducted any fraudulent transaction. • Feedback or information posted is not directly related to transactions conducted through SwapMars. • Feedback or information posted makes any reference to actions taken or purported to be taken by SwapMars or any law enforcement organization. • When SwapMars is provided with a ruling or settlement agreement from a valid and certified dispute resolution service, or is provided with a court order finding that the disputed feedback is slanderous, libelous, defamatory or otherwise illegal. • The User who left feedback provided SwapMars with false contact information during the transaction period (as verified by SwapMars) and cannot be contacted by SwapMars. • The User who left feedback is participating in a SwapMars transaction with the intent of leaving feedback as part of a campaign to harass SwapMars Member(s) (as verified by SwapMars). • Negative feedback that was intended for another User only when the User responsible for the mistaken feedback contacts SwapMars and places the same feedback for the appropriate User. This does not apply to feedback that was mistakenly marked negative instead of positive or vice versa, in which case the User can contact Member Service to file a feedback review request. Membership Cancellation Instructions To cancel your membership, contact Member Service and SwapMars will send you an email confirmation of your cancellation . In any notice of cancellation you must include: 1. Your full name, SwapMars Username, phone number and address. 2. Number of memberships you wish to cancel. Please note that we will not be able to process cancellation requests unless all of the above information is provided. Even after cancellation of your membership, you will still be responsible for completing all accepted swaps. SwapMars will send you an email confirmation once your membership has been cancelled. Audit Provisions and Record Keeping For a period of one year after accepting a trade or a swap, you agree to keep and maintain complete and accurate records related to the Services provided on SwapMars, including all item description and swapping terms and information originated on SwapMars. In the event of questions regarding swaps rendered, upon 30 days written notice and request from SwapMars, you agree to provide copies of these records and other relevant documentation. SwapMars currently provides historical Account information to its Members. However, you relief SwapMars of all obligations to retain historical records of Trades, Listings, Points and other Account information upon cancellation of membership or at any time during a User’s membership. If SwapMars decides to no longer keep or provide access to the aforementioned information to Members, SwapMars is under no obligation to inform Members of such change. ENFORCEMENT OF TERMS OF SERVICE We may suspend or cancel your Account if we believe that you have violated or acted inconsistently with the letter or spirit of the Terms of Service, or violated our rights or those of another party. Without limiting SwapMars's other remedies, we will suspend or terminate your Member Account and refuse to provide any Services to you if: (a) you breach any terms and conditions of the Terms of Service and the other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for SwapMars. Once suspended or terminated, you may not continue to use the SwapMars service under a different Account or re-register under a new Account. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. If a User or Member engages in actions or activities which circumvent the Site under the Terms of Service, that User or Member will be liable to SwapMars and may be subject to additional sanctions including, but not limited to, suspension or termination of SwapMars membership. SwapMars reserves the right to terminate any User or trade for any reason, at its sole discretion and to refuse to provide registration and membership to you in the future without the need to provide notice. When your membership is canceled, you may no longer have access to data, messages, files and other material you keep on the Site.
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