iGoSwap Terms of Use
1. Introduction
This is the iGoSwap user agreement (the "Agreement" or "User Agreement"). This Agreement describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of www.iGoSwap.com (the "Site").
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 iGoSwap. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access our services.
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 immediately after they are initially posted on the Site.
2. iGoSwap is a Venue
iGoSwap acts as a venue to allow anyone to trade video games and any other product we may choose to facilitate in the future, from anywhere in the world. We are not involved in the actual transaction between users of the site, and so we do not have 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.
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, iGoSwap 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.
Release
Because we are a venue, in the event that you have a dispute with one or more users, you release iGoSwap (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."
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 iGoSwap is not responsible for the acts or omissions of users on the Site.
iGoSwap may make available to users of the Site, message boards, opinion forums, bulletin board services or other interactive communication facilities. iGoSwap cannot review all communications made on or through the Site. However, iGoSwap reserves the right to monitor the Forums and edit, modify or delete any materials which iGoSwap in its sole discretion determines to violate this Agreement or to be in any other way offensive or contrary to any iGoSwap policy, either written or unwritten. iGoSwap 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 iGoSwap. You agree not to use iGoSwap 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.
3. Access to Services
Subject to the terms and conditions of these Terms of Use, iGoSwap may offer to provide certain services, as described more fully on the Site, which are selected by User through the functionalities provided on the Site solely for User's own use, and not for the use or benefit of any third party. Services may include, without limitation, facilitating User-to-User trades, sales, and purchases of video games or other goods serving as an information exchange among Users, and other services. iGoSwap may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. iGoSwap may also impose limits on certain features and services or restrict User's access to parts or all of the Services without notice or liability. iGoSwap reserves the right, at its discretion, to modify these Terms of Use at any time without notice by posting a new version on the Site under the "Terms of Use" hyperlink or elsewhere. Use of the Site or Services by User following such change constitutes User's acceptance of the terms and conditions of the Terms of Use as modified and the most current version of the Terms of Use will supersede all previous versions.
Registration Information
As a condition to using Services, User may be required to register with iGoSwap, to provide a mailing address, telephone number, and e-mail address, and to select a password and User name ("User ID"). User shall provide iGoSwap with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of User's account. iGoSwap reserves the right to refuse registration of, or to cancel a User ID in its discretion. User shall be responsible for maintaining the confidentiality of User's iGoSwap password. iGoSwap, in its discretion, may refuse to permit a User to register on iGoSwap 's Site if the email address or the mailing address provided by said User has already been registered on the Site, by User or any other User. Users may register only one User ID per household. Details of User's account are available on the User Account page of the Site.
User understands and acknowledges that User is required to provide its mailing address to iGoSwap as a condition to accessing iGoSwap 's Services. The iGoSwap reserves the right to verify any User's mailing address. User understands and acknowledges that if User utilizes iGoSwap 's Services to receive a Product from another User, User's address will be provided to the prospective seller of such Product for shipping purposes.
Minimum Age to Use Services
User certifies to iGoSwap that if User is an individual (i.e., not a corporation) User is at least 18 years of age. User also certifies that User is legally permitted to use the Services and access the Site, and takes full responsibility for accessing the Site and Content, and for the selection and use of the Services. These Terms of Use are void where prohibited by law, and the right to access the Site is revoked in such jurisdictions.
Maintaining Connection to Site
User shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to and access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service. User shall be solely responsible for ensuring that such equipment or ancillary services are compatible with the Services.
4. Site Content
All materials displayed or performed on the Site, including, but not limited to text, graphics, news articles, photographs, images, illustrations, audio clips and video clips (collectively, the "Content") are protected by copyright. The Site and all Content is intended solely for use by Company's Users and may only be used in accordance with these Terms of Use. User shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Use Restrictions
The Site is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. User may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of the Terms of Use), create derivative works based on, distribute, perform, publicly display, or in any way exploit, the Site, any of the Content or Services offered therein, or any software or other materials incorporated therein, in whole or in part. User may not download or copy any Content displayed on the Site without the express written consent of iGoSwap or from the copyright holder identified in such Content's copyright notice.
Contribution and Assignment of Content
User acknowledges and agrees that if User uses any of the Services to contribute Content to the Site, such Content shall become iGoSwap’s property and shall be deemed to be Content hereunder. User hereby assigns all rights, title and interests in and to such contributions to iGoSwap and, to the extent such rights are not fully assignable, hereby grants to iGoSwap a perpetual, non-exclusive, worldwide, royalty-free, transferable right to fully exploit such Content (including all related intellectual property rights) and to allow others to do so. To the fullest extent allowed by law, the foregoing includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "Moral Rights." To the extent User retains any such Moral Rights under applicable law, User hereby ratifies and consents to any action deemed necessary or advisable by iGoSwap to perfect its interest in all such Content and Moral Rights, and agrees not to assert any Moral Rights with respect thereto except as may be requested by iGoSwap to perfect its interest.
Right to Remove Content
iGoSwap reserves the right to remove any Content from the Site at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if iGoSwap is concerned that User may have breached any of its obligations), or for no reason at all.
Content Disclaimer
iGoSwap's Services enable Users to post Content, to access Content posted by other Users and advertisers, and to exchange information for purposes of effecting Transactions. iGoSwap has no special relationship with or fiduciary duty to User. iGoSwap makes no representations whatsoever concerning, and shall not be responsible or liable for, the accuracy, completeness, copyright compliance, legality, or appropriateness of material contained in or accessed through the Site. User acknowledges that the Site may contain, or direct User to sites containing, information that some persons may find offensive or inappropriate.
5. User Responsibilities in Using Site
User is responsible for all of its activity in connection with the Services and in accessing the Site, including, without limitation, all of User's activities in completing Transactions and any activity by User that is fraudulent, abusive, or otherwise illegal (for examples of fraudulent activity, see Section 7 below). Without limiting any of User's responsibilities, User acknowledges and agrees to the following restrictions:
Compliance with Law
User shall be solely responsible for compliance with all laws, regulations and ordinances connected with the User's access to the Site and utilization of Services.
Compliance with End User License Agreements
User shall comply with all publisher and developer End User License Agreements ("EULAs") for each Product, as may be applicable.
Compliance with Terms of Use
User shall comply with all of the provisions of these Terms of Use.
Prohibited Activities
User warrants, represents and agrees that it will not contribute any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party. Use of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including those that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. User will not run Maillist, Listserv, any form of auto-responder, or "spam" on the Site, or any processes that run or are activated while the User is not logged in. User may not transfer User's iGoSwap account to any third party, or use the Site or Services for any commercial purposes or for the benefit of any third party. User will not distribute or post spam, advertisements, chain letters, or pyramid schemes.
No Viruses
User shall not distribute viruses, worms, or other technologies that seek to injure or adversely affect Company property or interests, or the property or interests of iGoSwap Users.
No Soliciting Account Information from Other Users
User shall not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or other private information regarding the account of any Company User.
6. Completion of Transactions
Users are required to complete all Transactions they have accepted (whether as buyer or seller) in a timely manner, in accordance with Site rules and these Terms of Use, and to one another's full satisfaction.
Information and Further Actions
Users listing Products shall provide all information required by the Company in connection with such listing ("Listing Information"). Users selling or trading Products shall provide to purchasing Users all information required for such purchasing User to fully utilize the Product for its intended purposes, including, without limitation, passwords, license numbers, registration codes, and other necessary information as may be applicable (collectively, "Product Information"). All Listing Information and all Product Information shall be complete and correct, and shall not omit any information about the Product necessary for its use. Users selling or trading Products shall take all appropriate further actions to complete the Transaction promptly and to recipient's full satisfaction. If the Site does not provide adequate facilities or features for User to provide any relevant Listing Information or Product Information, then User shall not use the Site to list or exchange such Product.
Mailing of Products
User agrees to mail Products that User has undertaken to exchange with another User within the time limits specified by iGoSwap. Failure to comply with mailing time limits may result in termination or restriction of User's account, at the discretion of iGoSwap. User will take all reasonable precautions to ensure that Products mailed to other Users arrive in good condition, including, but not limited to, by using padded envelopes recommended by iGoSwap and affixing proper postage.
Good Title
Each User represents and warrants, with respect to each sale or exchange of a Product, that such User has all authority, and all the right, title, and interest in the Product necessary to enter into and perform such Transaction.
Transfer of Title
Unless Users explicitly and mutually agree otherwise, the recipient User shall become the lawful owner of the Product upon physical receipt of the Product from the selling User, in accordance with California Commercial Code § 2401(2) and other state counterparts of Uniform Commercial Code § 2-401(2), as may be applicable.
No Representations by Company
User acknowledges that iGoSwap does not have legal ownership of any of the Products, cannot transfer title thereto, is not a party to the transaction between Users, and can make no representations whatsoever concerning the quality, safety or legality of any Product, the truth or accuracy of any Product listing, or the ability or willingness of any User to complete any Transaction.
Release of Company from User Disputes
In the event that User has a dispute with one or more other Users, User releases iGoSwap, its officers, directors, employees, agents, subsidiaries, joint venturers, and other related parties from claims, demands and damages 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."
7. Fraudulent Acts
User agrees not to commit fraud using the Site or Services. Examples of fraud include, but are not limited to, committing to send a Product but not actually sending it, or sending it after an unreasonable delay, claiming a Product was never received when in fact it was, claiming a Product is lost, broken, incorrect, scratched or otherwise problematic when it is not, claiming to own a Product that User does not own the rights to, creating a different User ID to avoid adverse action by iGoSwap, and other similar actions. In addition, the following related policies apply.
When Receiving Shipments
In the event a User claims more than three (3) instances of having received a lost, broken, incorrect, scratched or otherwise problematic Product, iGoSwap may, at its sole and complete discretion, determine that the User is not eligible to use the Services and Company may elect not to apply any credit to the individual's account for such lost, broken, incorrect, scratched or otherwise problematic Product. In addition to suspending or terminating a User's account or access to the Site or Services, iGoSwap may pursue any remedies available at law.
When Sending Shipments
In the event a User is reported shipping a lost, broken, incorrect, scratched, counterfeited or otherwise problematic Product, iGoSwap may, in its sole and absolute discretion, determine that the User is not eligible to use the Services and iGoSwap may elect not to apply any credit to the individual's account for such lost, broken, incorrect, scratched, counterfeited or otherwise problematic Product. In addition to suspending or terminating a User's account or access to the Site or Services, iGoSwap may pursue any remedies available at law.
User ID Fraud
User may not (i) select or use as a User ID a name of another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than User without appropriate authorization; or (iii) create multiple User IDs within a single household; or (iv) create multiple User IDs in two or more households for the purpose of defrauding iGoSwap or avoiding adverse action by iGoSwap with respect to User's account.
Counterfeit and Illegally Copied Games
Users may not illegally copy games. User shall not list or exchange games or other products that are counterfeited or in violation of the publisher or developer's EULA. User's access to the Site or Services may be immediately terminated in the event the User uses the Site or Services for illegal purposes or makes unlawful copies of games or unlawfully distributes games.
6. Third Party Links
The iGoSwap Site or Services may contain links to or references to third party websites. User acknowledges that iGoSwap is not responsible for these websites, has not reviewed such websites, has no control over such websites, and is not in any way liable for Content that appears on these third party websites.
7. Cookies
iGoSwap may place a cookie or other small text file on any computer from which a User accesses the Site or Services.
8. Fees, Payment, Credit Card Processing
Some iGoSwap Services require payment of fees. User hereby agrees to pay all applicable fees, as described on the Site in connection with such Services selected by User. User hereby authorizes iGoSwap automatically to charge User's credit card account for any and all fees incurred by User in using the Site or Services, without the need to provide any further notice to User of the fees so incurred. iGoSwap reserves the right to change its price list and to institute new charges at any time. Use of the Services by User following such changes constitutes User's acceptance of any new or increased charges.
User acknowledges that all payments for Services and Products offered by the Company are currently managed external sources. Credit card information is entered by Users directly on the online payment provider's secure website. The Company does not collect credit card information and is not permitted to access this information during payment. User agrees that the Company shall not be liable in the event of error, fraud, identity theft, or other problems with credit card processing or online payment processing.
9. Privacy Policy
Usage of the Site or Services and any information submitted therein is subject to iGoSwap’s Privacy Policy. Users are advised to review this Privacy Policy. iGoSwap shall maintain the privacy of User's personal information in accordance with the Privacy Policy. iGoSwap shall not be liable for the privacy of any information published by any User on the Site or transmitted by any User to any other User, including, without limitation, e-mail addresses, registration and identification information, personal information, confidential or trade-secret information, or any Content.
10. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC §§2701-2711)
IGOSWAP MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB-SITE LINKED TO THE SITE. iGoSwap reserves the right to monitor transmissions over its network for maintenance, service quality assurance, or any other purpose permitted by the Electronic Communications Privacy Act.
11. WARRANTY DISCLAIMER
THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
12. Indemnity
User will indemnify and hold iGoSwap, its parents, subsidiaries, affiliates, officers, employees, and agents harmless from and against all damages, costs, and expenses (including reasonable attorneys' fees), incurred in connection with any claim or demand made by any third party arising from (i) User's use of or access to the Site or Services, (ii) User's violation of these Terms of Use, or (iii) the infringement by User, or by any third party using User's account, of any intellectual property or other right of any person or entity. User hereby releases iGoSwap from any and all liability arising in connection with the acts or omissions of other Users or of any other third parties, including, without limitation, any liability relating in any way to the Content or to any Transaction.
13. Limitation of Liability
IN NO EVENT SHALL IGOSWAP BE LIABLE TO A USER WITH RESPECT TO THE SITE OR THE SERVICES (i) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY USER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR TWENTY-FIVE DOLLARS ($25), WHICHEVER IS LESS; OR (ii) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; OR (iii) FOR ANY DAMAGES AWARDED IN A DISPUTE BETWEEN USER AND ONE OR MORE OTHER USERS.
14. Company Right to Terminate User Account
Notwithstanding anything in these Terms and Conditions to the contrary, iGoSwap reserves the right, in its sole and absolute discretion, to suspend or terminate a User's account or a User's access to the Site or Services at any time, with or without notice, for any reason or for no reason. Upon termination of the User's account, User's right to access the Site and any Content, and to use iGoSwap Services, will immediately cease.
15. Other Company Remedies
Without limiting other remedies available hereunder or at law or equity, iGoSwap may limit User's activity, warn other Users of User's actions, issue a warning, temporarily suspend, or indefinitely suspend User's account and refuse to provide access to the Site or Services to User if: (a) User breaches these Terms of Use or the documents it incorporates by reference; (b) iGoSwap is unable to verify or authenticate information that User provides; or (c) iGoSwap believes that User's actions may cause financial loss or legal liability for the User, for other Users, or for iGoSwap.
16. Miscellaneous
The failure of iGoSwap to exercise in any respect any right provided for herein shall not be deemed a waiver of that or any further rights hereunder. iGoSwap shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond iGoSwap 's reasonable control, including, but not limited to, mechanical, electronic, or communications failure or degradation (including "line-noise" interference). If any provision of these Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect and enforceable. These Terms of Use are not assignable, transferable or sub-licensable by User except with iGoSwap’s prior written consent. These Terms of Use shall be governed by and construed in accordance with the laws of the state of Maryland without regard to the conflict of laws provisions thereof. User agrees that should a dispute arise between User and the iGoSwap regarding these Terms of Use, any litigation or arbitration will take place in Maryland. User agrees that these Terms of Use are the complete and exclusive statement of the mutual understanding of User and the iGoSwap, and supersede all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms of Use. No agency, partnership, joint venture, or employment is created as a result of these Terms of Use and User does not have any authority of any kind to bind iGoSwap in any respect whatsoever.
Last updated on: October 1, 2009 |
