SWAPEE! CONDITIONS AND TERMS OF USE AGREEMENT
 
THIS TERMS OF USE AGREEMENT (“AGREEMENT”) IS A LEGALLY BINDING DOCUMENT BETWEEN YOU (“MEMBER”, “USER” or “YOU”) AND SWAPEE!, LLC (“SWAPEE!”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS APPLICABLE TO YOUR USE OF OUR SERVICES AVAILABLE UNDER THE DOMAIN AND SUB-DOMAINS OF SWAPEE.COM AND BY WHICH YOU MAY ACCESS THE SWAPEE! WEB SITE (THE “SITE” or “WEB SITE”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING WITH SWAPEE! AND ACCESSING THE SWAPEE! WEB SITE. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU SHALL CLICK THE “DISAGREE” BUTTON AND SHALL NOT USE OR ACCESS THE SWAPEE! WEB SITE OR OUR SERVICES (“SWAPEE! SERVICES”). BY SELECTING THE “AGREE” BUTTON AND ACCESSING THE SWAPEE! WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. GENERAL
  1. You must read, agree with and accept all of the terms and conditions contained in this Agreement and the Intellectual Property, Privacy, and other policies, which include those terms and conditions expressly set out below, before you may become a member of Swapee!
  2. Swapee! 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 posted on the Site.  This Agreement may not be otherwise amended except in a writing signed by you and Swapee!.  This Agreement is effective upon acceptance in registration for new registering users, and is otherwise effective on September 1, 2007 for all users.
2. MEMBERSHIP ELIGIBILITY
  1. Swapee! services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law.  Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended Swapee! members.  If you do not qualify, please do not use our Site.
  2. Swapee! may only be used for Real Estate exchange or sale purposes.  When a user joins Swapee!, users agree not to contact Swapee!'s members for any other purpose than to arrange a personal real estate exchange or agreement to purchase.
  3. When you first register to become a Swapee! Member, you will be prompted to select a password.  You are solely responsible for maintaining the confidentiality of your password.  You agree not to use any account, user-name, or password of another Member at any time or to disclose your password to any third party.  You agree to notify Swapee! immediately if you discover any unauthorized use of your account or access to your password.  You are solely responsible for any and all use of your account.
3. FEES AND SERVICES
  1. Joining Swapee! is not free. We charge fees for membership, web pages, catalogues and other services. There are no refunds. You acknowledge that Swapee! reserves the right to charge for the Swapee! services and to change its fees from time to time, in its sole discretion. If Swapee! terminates your Swapee! Membership because you have breached the Agreement, you shall not be entitled to a refund of any portion of subscription fees, or any other fees.

4. TERM OF AGREEMENT
  1. This Agreement shall remain in full force and effect while you use the Swapee! Services, or are a Member.  You may terminate your Membership at any time, for any reason, by following the instructions on the Swapee! Web Site.  Swapee! may terminate your Membership at any time, without warning.  Even after Membership is terminated, this Agreement will remain in effect.
5. SWAPEE! IS A VENUE
  1. 5.1. Swapee! does not provide Real Estate services. Swapee! is not a Real Estate Exchange or Purchase arranger. While we may commonly be described as a home exchange service, it is important to understand that Swapee! is not a conventional “matchmaker” service that puts one party directly in contact with another party seeking a Real Estate property. Instead, the Site acts as a venue to allow anyone to contact any other member about a Real Estate exchange or purchase. Swapee! does not assist users in any real estate transaction, nor does Swapee! provide legal advice. We are not involved in the actual transaction between parties. As a result, we have no control over the truth or accuracy of the listings or the ability of members to meet their obligations. We cannot ensure that a buyer or seller will actually complete a promised exchange or purchase.
  2. We use techniques to verify the accuracy of the information our users provide us when they register on the Site. Nevertheless, because user verification on the Internet can be difficult, Swapee! cannot and does not confirm each user's purported identity. Thus, we encourage our members to obtain references from potential rental and exchange partners to help you evaluate the party with whom you are dealing. We also encourage you to communicate directly with your potential home trading or rental partners via e-mail, telephone or mail to get to know them better before actually traveling.
  3. Because we are a venue, in the event that you have a dispute with one or more users, you release Swapee! (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.
  4. 5.4. We do not control the information provided by other users that is made available through our system. Please use caution, common sense, and practice safe trading when using the Site. Additionally, there may also be risks dealing with foreign nationals. By using this Site, you agree to accept such risks and agree that Swapee! is not responsible for the acts or omissions of users on the Site.

6. LISTING
  1. You must be legally able to trade or sell the property you list for exchange or sell on the Site. Only legal owners or real estate brokers with signed listing agreements may list properties on Swapee!. You must describe your home accurately on the listing page of the Site. Without limiting any other remedies, Swapee! may suspend or terminate your account, or take any legal action, if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.

7. PROPIETARY RIGHTS IN CONTENT OF SWAPEE!
  1. Swapee! does not claim any ownership rights in the text, files, images, photos, video, film, sounds, works of authorship, or any other materials that you post on Swapee! ("User Content"). After posting your User Content to Swapee!, you continue to retain all ownership rights in such User Content, and you continue to have the right to use your User Content in any way you choose. By displaying or publishing ("posting") any User Content on or through Swapee!, you hereby grant to Swapee! a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content solely on and through Swapee! and in conjunction with the Swapee! Services. This license will terminate at the time you remove your User Content from Swapee!. The license does not grant Swapee! the right to sell your User Content, nor does the license grant Swapee! the right to distribute your User Content outside of the Swapee! Services.
  2. You represent and warrant that: (i) you own the User Content posted by you on or through Swapee! or otherwise have the right to grant the license discussed in this section, and (ii) the posting of your User Content on or through Swapee! does not violate the copyrights, trademarks, contract rights privacy rights, publicity rights, or any other rights of any entity or person, alive or dead. You agree to pay for all royalties, fees, and any other liabilities or monies owing any person by reason of any User Content posted by you to or through Swapee!.
  3. Swapee! Services contain various Content of Swapee! ("Swapee! Content"). Swapee! Content is protected by copyright, trademark, patent, trade secret and other laws, and Swapee! owns, reserves and retains all rights in the Swapee! Content and the Swapee! Services. Swapee! hereby grants you a limited, revocable, non-sublicensable license to reproduce and display the Swapee! Content (excluding any software code) solely for your personal use in connection with viewing the Swapee! Website and using the Swapee! Services.
  4. Swapee! contains Content of Users and other Swapee! licensors (“Other Content”). Except for User Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Swapee! or Other Content appearing on or through the Swapee! Services.

8. SWAPEE!'S INTELLECTUAL PROPERTY POLICY
  1. You may not post, modify, distribute, or reproduce, in any way, any copyrighted material, trademarks, patents, trade secrets, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights.
  2. It is the policy of Swapee! To terminate membership privileges of any member who infringes the copyright, trademark, patent, or other intellectual property rights, of others.
  3. Without limiting the foregoing, if you believe that your work has been copied and posted on Swapee! in a way that constitutes copyright infringement, please contact and notify Swapee! with the following information: (a) a description of the copyrighted work that you claim has been infringed; (b) a description of the location on Swapee! Services sites of the material that you claim is infringing; (c) your address, telephone number, and email address; (d) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and (f) a signature of the person authorized to act on behalf of the owner of the copyright interest.
  4. You shall not refer to Swapee! in any way that might lead someone to believe that you, your home or other real property, your company or your site is sponsored by, affiliated with, or endorsed by Swapee!.
  5. The Swapee! name and logo are trademarks in the United States. We do not permit the use of the Swapee! name and logo by third parties unless they have a written license agreement with Swapee!. Use of the Swapee! name and logo without express written permission from Swapee! is not permitted.

9. POSTED CONTENT
  1. Swapee! may delete any Content that violates this Agreement or which may be offensive, illegal, violate the rights of, harm, or threaten the safety of any person. Swapee! assumes no responsibility for monitoring the Swapee! Services for inappropriate Content or conduct. If at any time Swapee! chooses, in its sole discretion, to monitor the Swapee! Services, Swapee! nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
  2. You are solely responsible for the User Content that you post on or through any of the Swapee! Services, and any material or information that you transmit to other Members. Swapee! does not endorse and has no control over User Content. User Content is not necessarily reviewed by Swapee! prior to posting and does not necessarily reflect the opinions or policies of Swapee!. Swapee! makes no warranties, express or implied, as to the User Content or to the accuracy and reliability of the User Content or any material or information that you transmit to other Members.

10. PROHIBITED CONTENT/ACTIVITY
  1. The following is a non-exhaustive list of the kind of activity that is illegal or prohibited on Swapee! sites and through your use of the Swapee! Services. Swapee! reserves the right to investigate and take appropriate legal action against anyone who, in Swapee!'s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.
  2. Prohibited activity includes, but is not limited to:
    1. copyright infringement, trademark infringement, patent infringement, or theft of trade secrets, any criminal or tortious activity, fraud, obscene material, gambling, distribution of controlled substances, harassment, stalking, sending of viruses or other harmful files, spamming;
    2. posting defamatory, libelous, false, inaccurate, or misleading content (including personal information);
    3. transmission of any advertisements, spam, chain letters or junk email to other Members. If you breach this Agreement and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Swapee! Services, you acknowledge that you will have caused substantial harm to Swapee!, but that the precise amount of such harm would be very difficult to quantify. Accordingly, as a reasonable approximation of such harm, you agree to pay Swapee! $100 for each such unsolicited email or other unsolicited communication you send through the Swapee! Services;
    4. any automated use of the system, such as using scripts to add friends or send comments or messages;
    5. interfering with, disrupting, or creating an undue burden on the Swapee! Services or the networks or services connected to the Swapee! Services;
    6. attempting to impersonate another Member or person;
    7. using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
    8. selling or otherwise transferring your profile; and
    9. using any information obtained from the Swapee! Services in order to harass, abuse, or harm another person.

11. PERSONAL USE BY MEMBERS
  1. The Swapee! Services are for the personal use of Members only and may not be used for any commercial use, except those that are expressly approved by Swapee!, in writing. Illegal and/or unauthorized use of the Swapee! Services, including collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Swapee! Website is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Member profiles without notice and may result in termination of Membership privileges. Any and all appropriate legal action may be taken for any illegal or unauthorized use of the Swapee! Services.

12. YOUR INFORMATION
  1. "Your Information" is defined as any information you provide to Swapee! or other users in the registration or listing process, or through any email with another Swapee! member. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.
  2. Your Information and your activities on the Site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the exchanging or renting of property not allowed to be exchanged or rented; (c) violate any law, statute, ordinance or regulation (including, but not limited to consumer protection, unfair competition, antidiscrimination or false advertising); (d) be defamatory, libelous, unlawfully threatening or unlawfully harassing; (e) contain any viruses, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (f) create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers or other suppliers; and (g) link directly or indirectly to or include descriptions of properties that: (1) are prohibited under this Agreement; (2) you do not have a right to link to or include; (3) are located at the web site of another home, hospitality, youth exchange or vacation rental web site.
  3. You agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information in order to enable Swapee! to use the information you supply us with, so that we are not violating any rights you might have in that information.

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

14. LEGAL DISCLAIMERS
  1. Swapee! Hereby disclaims and user hereby waives all warranties, express or implied, including, but not limited to, all implied warranties of fitness for a particular purpose and all implied warranties of merchantability. Swapee! Web site is provided “as is” without warranty of any kind. Swapee! Does not guarantee or warrant the accuracy, completeness or usefulness of the Swapee! Web site. Swapee! Does not make any warranty and user hereby waives any and all warranties as to the results obtained from the services or as to the accuracy or reliability of the Swapee! Web site. User hereby acknowledges and agrees that use of the services shall be at the sole and exclusive risk of user and subject to the restrictions, terms and conditions, rules, regulations, policies, applicable laws and the policy statement governing the services. Swapee! Shall not be liable under any circumstances for harm or damages resulting from or arising out of user inability to use the services.
  2. In no event shall Swapee!, our subsidiaries, officers, directors, employees or our suppliers be liable for lost property or any special, incidental or consequential damages arising out of or in connection with our site, our services or this agreement however arising, including negligence.
  3. Our liability, and the liability of our subsidiaries, officers, directors, employees, and suppliers, to You or any third parties in any circumstance is limited to the greater of (a) the amount of fees you pay to us in the 12 months prior to the action giving rise to liability, and (b) $100. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.

15. ADDITIONAL LEGAL DISCLAIMERS
  1. User hereby acknowledges that the Content may contain errors, inaccuracies, and omissions. User shall assume any and all risk of loss, harm or damage associated with User access to and use of the Swapee! Technology.
  2. User hereby acknowledges and agrees that Swapee! (including officers, employees, agents, directors, and independent contractors of Swapee!) has not made or granted to User any express warranties concerning the Swapee! Technology, excepting the warranty in Section 5.01.
  3. Swapee! shall not be liable to User for any lost profits or consequential, exemplary, incidental or punitive damages, in connection with (i) use, performance or operation of the Swapee! Web Site or Services; (ii) use, performance or operation of the Internet or use of the Internet by User; and (iii) loss of Data, regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether Swapee! has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary contained herein, Swapee!’s liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to Swapee! for the Swapee! Services during the term of membership.
  4. The sole remedy for User for any reason and for any cause of action whatsoever in connection with this Agreement and the Swapee! Web Site or Services, regardless of the form of action, whether in contract or in tort, including negligence, shall be modification of the Swapee! Web Site, as determined by Swapee!. Swapee! is not responsible for any incorrect or inaccurate Content posted on the Swapee! Website or in connection with the Swapee! Services, whether caused by Users of the Swapee! Services or by any of the equipment or programming associated the Swapee! Services. Profiles created and posted by Members on the Swapee! Website may contain links to other websites. Swapee! is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by Swapee!.
  5. Inclusion of any linked website on the Swapee! Services does not imply approval or endorsement of the linked website by Swapee!. When you access these third-party sites, you do so at your own risk. Swapee! takes no responsibility for third party advertisements which are posted on this Swapee! Website or through the Swapee! Services, nor does it take any responsibility for the goods or services provided by its advertisers. Swapee! is not responsible for the conduct, whether online or offline, of any User of the Swapee! Services. Swapee! assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. Swapee! is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Swapee! Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Swapee! Services. Under no circumstances shall Swapee! be responsible for any loss or damage, including personal injury or death, resulting from use of the Swapee! Services, attendance at a Swapee! event, from any Content posted on or through the Swapee! Services, or from the conduct of any Users of the Swapee! Services, whether online or offline. The Swapee! Services are provided "AS-IS" and as available and Swapee! expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Swapee! cannot guarantee and does not promise any specific results from use of the Swapee! Services.

16. BREACH
  1. Without limiting other remedies, we may limit your activity, immediately remove your listing, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you, or take any other legal action if: (a) you breach this Agreement; (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 Swapee!.

17. PRIVACY POLICY
  1. Use of Swapee! is also governed by our Privacy Policy.

18. DISPUTES
  1. If there is any dispute about or involving the Swapee! Services, you agree that the dispute shall be governed by the laws of the State of Arizona, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of Arizona, City of Phoenix. Either Swapee! or you may demand that any dispute between Swapee! and you about or involving the Swapee! Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Phoenix, Arizona provided that the foregoing shall not prevent Swapee! from seeking injunctive relief in a court of competent jurisdiction. All claims you bring against Swapee! must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Swapee! may recover attorneys' fees and costs up to $1000, provided that Swapee! has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

19. INDEMNITY
  1. You agree to indemnify and hold Swapee!, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Swapee! Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the Swapee! Website or through the Swapee! Services causes Swapee! to be liable to another.

20. LEGAL COMPLIANCE
  1. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your listing and soliciting home exchange or vacation rental.

21. NO AGENCY
  1. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

22. MISCELLANEOUS
  1. This Agreement contains the entire understanding of the parties and supersedes all previous verbal and written agreements between Swapee! and User relating to the Swapee! Services.
  2. Each of the policies in this Agreement may be changed from time to time and are effective immediately after we post the changes on the Site. In addition, when using particular services on the Site, you agree that you are subject to any posted policies or rules applicable to services you use through the Site, which may be posted from time to time. All such posted policies or rules are hereby incorporated by reference into this Agreement.
  3. The failure of Swapee! to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
  4. This Agreement operates to the full extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.


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