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Using Swichio

WEBSITE USAGE AGREEMENT

 

Welcome to Swichio.  By using this website you agree to the following terms and conditions.  Please read them before using this website. If you use this website and any website related services (collectively, the “Website”), you are subject to the terms and conditions set forth in this Website Terms of Use Agreement (“Agreement”). If you do not agree to these terms and conditions, you may not access or use this Website.

 

1.  Permitted use of Website. You may access this Website to [offer, sell, and buy just about any item, at any time, from anywhere, in a variety of pricing formats and locations, such as Stores and auction-style formats. Swichio is not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the existence, quality, safety, or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.]
 
2.  Rules of Conduct. You agree not to:
 
  1. Use the Website for any fraudulent or unlawful purpose;
  2. Post content or items in inappropriate categories or areas on our sites and services;
  3. Violate any laws, third party rights or our policies;
  4. Use our site, services or tools if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from using our sites, services, or tools;
  5. Fail to deliver payment for items purchased by you, unless the seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot reach the seller;
  6. Fail to deliver items purchased from you, unless the buyer fails to meet the posted terms, or you cannot reach the buyer;
  7. Manipulate the price of any item or interfere with other users' listings;
  8. Circumvent or manipulate our fee structure, the billing process, or fees owed to Swichio;
  9. Post false, inaccurate, misleading, defamatory, or libelous content;
  10. Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the sites or using it for purposes unrelated to Swichio);
  11. Circumvent any Swichio policy or determinations about your account status such as temporary or indefinite suspensions or other account holds, limitations or restrictions;
  12. Transfer your Swichio account (including Feedback) and user ID to another party without our consent;
  13. Distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
  14. Impersonate any person or entity;
  15.  Interfere with or disrupt the operation of the Website;
  16. Transmit or otherwise make available in connection with the Website any virus, worm, Trojan Horse, robot, spyware, or other computer code;
  17. Restrict or inhibit any other person from using the Website, including by means of hacking or defacing any portion of the Website;
  18. Interfere with or violate any other visitor’s or user’s right to privacy or other rights, or harvest or collect personally identifiable information about Website visitors or users;
  19. Sell, resell, transfer, license or exploit for any commercial purposes any use of or access to the Website;
  20. Modify, adapt, translate, reverse engineer, decompile or dissemble any portion of the Website;
  21. Misuse passwords;
  22. Frame or mirror all or any part of the Website without our express written authorization;
  23. Attempt to gain unauthorized access to the information of anyone else or to any computer systems or networks connected to any of our servers;
  24. Publish or disseminate any link to the contents of this website without our express written consent; or
  25. Export or re-export any Swichio tools except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions.
 
3.     Fees and Services.   Joining Swichio and bidding on listed items is free. We do charge fees for using other services, such as commissions on sold item. The fees we charge for using our services are listed on our Fees schedule, which we may change from time to time. Changes to that schedule are effective after we provide you with at least 14 days' notice by posting the changes on www.swich.io. We may choose to temporarily change the fees for our services for promotional events (for example, free listing days) or new services, and such changes are effective when we post the temporary promotional event or new service on the sites. Unless otherwise stated, all fees are quoted in United States Dollars.
 
You are responsible for paying all fees and applicable taxes associated with our sites, services, and tools with a valid payment method by the payment due date. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and for accounts over 180 days past due.)  In addition, you will be subject to late fees and we may suspend or restrict you from using our sites, services, and tools until full payment is made. Swichio, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report.
 
If you wish to dispute the information Swichio reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us at Swichio, LLC., PO Box 2612, Midlothian, VA 23113. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Swichio account, you must contact the collection agency directly.
 
4.     Returns.  You acknowledge that all transaction are final and returns are not permitted.
 
5.  Content and Availability.  The content and availability of the Website may change at any time. We shall not be liable to you for any change to the Website or in connection with the availability of the Website.
6.  Changes and Revisions to this Agreement. We may change or revise this Agreement at any time by posting an amended Agreement on the Website. The changes or revisions (which may include new terms and conditions) are effective on the date the new Agreement is posted on the Website. You can review the most current version of the Agreement by clicking on the [Terms of Use] hypertext link on our Home Page. 
 
7.  Monitoring. Use of this Website may be monitored, tracked and recorded. By using this Website, you consent to such monitoring, tracking and recording.
 
8.  Copyright, Trademark and Other Legal Rights. We own the content of this Website, including but not limited to all design, text, processes and images, and the Website is protected by copyright and trademark law, international treaties and other applicable laws and regulations. Except as otherwise expressly provided in this Agreement, the content may not be modified, copied, transmitted, displayed, reproduced, published, sold, distributed, licensed, altered, framed, stored for subsequent use or otherwise used in any manner without our prior written consent.
 
When providing us with content or posting content on our sites, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights you have in the content, in any media know now or in the future.
 
9.  Limitation of Liability and Disclaimer of Warranties. This Website is provided to you “AS IS” and without warranty of any kind. We do not make any warranty and hereby disclaim all warranties that may arise from your use of or reliance on this Website (and any links to other websites that are contained within the Website) including without limitation all warranties of merchantability, whether express, implied or statutory, fitness for a particular purpose, title, and non-infringement. We shall not be liable for any delay, difficulty in use, inability to use, inaccuracy of information, computer viruses, malicious code or other defect in the Website or for the incompatibility between the Website and files and the user’s browser or other site accessing program. We also shall not be liable for any other problems you experience due to causes beyond our control. We shall not be responsible or liable for any direct, indirect, incidential, consequential, special, exemplary or punitive damages of any kind arising out of or in connection with the use or performance of information available on the Website whether resulting in whole or in part, from breach of contract, tortious behavior, negligence, strict liability or otherwise, even if Swichio and/or its agents or suppliers had been advised of the possibility of damages.  Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
 
10.  Indemnification. You agree to defend, indemnify and hold Swichio and its affiliates harmless from any and all liabilities costs and expenses, including reasonable attorney’s fees, related to any violation of this Agreement by you.
 
11.  Severability. In the event any of the terms or provisions of this Agreement is held to be unenforceable, the remaining terms and provisions shall not in any way be affected or impaired thereby.
 
12.  Termination. We may terminatethis Agreement at any time. Without limiting the foregoing, we shall have the right to immediately terminate your passwords or accounts in the event you engage in conduct which we, in our sole discretion, consider to be unacceptable, or in the event of any breach by you of this Agreement. The indemnification provisions shall survive termination of this Agreement.
 
13.  Legal Disputes; Agreement to Arbitrate.  You and Swichio agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Legal Disputes Section. Please read this Section carefully.  It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
 
The laws of the Commonwealth of Virginia, without regard to principles of conflicts of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Swichio, except as otherwise stated in this Agreement.
 
You and Swichio each agree that any and all disputes or claims that have arisen or may arise between you and Swichio shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.  The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
 
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND SWICHIO AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.  UNLESS BOTH YOU AND SWICHIO AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.  ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).  ANY RELIEF AWARDED CANNOT AFFECT OTHER SWICHIO USERS.
 
Arbitration is more informal than a lawsuit in court.  Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited.  However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual.  An arbitrator also must follow the terms of this Agreement as a court would.
 
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate.  The AAA's rules are available at www.adr.org.  A form for initiating arbitration proceedings is available on the AAA's website at http://www.adr.org.
 
The arbitration shall be held in the county in which you reside or at another mutually agreed location.  If the value of the relief sought is $10,000 or less, you or Swichio may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Swichio subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant.  Attendance at an in-person hearing may be made by telephone by you and/or Swichio, unless the arbitrator requires otherwise. 
 
The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Virginia, including recognized principles of equity, and will honor all claims of privilege recognized by law.  The arbitrator shall not be bound by rulings in prior arbitrations involving different Swichio users, but is bound by rulings in prior arbitrations involving the same Swichio user to the extent required by applicable law.  The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
 
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate.  If the value of the relief sought is $10,000 or less, at your request, Swichio will pay all filling, administration, and arbitrator fees associated with the arbitration.  Any request for payment of fees by Swichio should be submitted by mail to the AAA along with your Demand for Arbitration and Swichio will make arrangements to pay all necessary fees directly to the AAA.  If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Swichio will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.  In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Swichio for all fees associated with the arbitration paid by Swichio on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
 
With the exception of any of the provisions in the "Prohibition of Class and Representative Actions and Non-Individualized Relief" section of this Agreement to Arbitrate, if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions in the "Prohibition of Class and Representative Actions and Non-Individualized Relief" section of this Agreement to Arbitrate is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void.  The remainder of the Agreement and its Legal Disputes Section will continue to apply.
 
You can choose to reject this Agreement to Arbitrate ("opt-out") by mailing us a written opt-out notice ("Opt-Out Notice").  For new Swichio users, the Opt-Out Notice must be postmarked no later than 30 days after the date you accept the Agreement for the first time.  You must mail the Opt-Out Notice to Swichio, LLC., PO Box 2612, Midlothian, VA 23113. 
 
The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, and the user ID(s) and email address(es) associated with the Swichio account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you.  Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
 
Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim of which you provided Swichio with written notice prior to the effective date of the change.  Moreover, if we seek to terminate the Agreement to Arbitrate as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the Agreement to Arbitrate is posted to http://www.swich.io/ and shall not be effective as to any claim of which you provided Swichio with written notice prior to the date of termination.
 
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or a court order, you agree that any claim or dispute that has arisen or may arise between you and Swichio must be resolved exclusively by a state or federal court located in Richmond, Virginia.  You and Swichio agree to submit to the personal jurisdiction of the courts located within Richmond, Virginia for the purpose of litigating all such claims or disputes.
 
14.  Applicable Law.  This agreement shall be governed and interpreted by applicable federal laws and the internal laws of the Commonwealth of Virginia.
 15.  Service Providers.  Swichio is not responsible or liable for any content, goods or services from any Third Party Service Provider or Individual.  You agree that Swichio is not responsible or liable directly or indirectly for any damages or loss caused or alleged to be caused by or in connection with such use or reliance.  Your dealings or participation with any Service Provider or Individual are between you and such Service Provider or Individual.  You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Service Providers or Individual.  
You agree that Swichio is not responisble for the accessiblity or unavailability of any Service Provider or Individual or for your interactions and dealings with them.  You agree that you engage in any activity or agreement with a Service Provider or Individual at your own risk.  You waive the right to assert any claim against Swichio and release Swichio from any and all liability for or relating to interactions with Servivce Providers or Individuals. 
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