SWOONDLE™ TERMS AND CONDITIONS AS OF JULY 17, 2017

MEMBERSHIP AND USER AGREEMENT

Welcome to SwoondleSociety.com. Swoondle Inc. (“Swoondle”) provides this website as a service to its members and users (the “Site”). This Site offers swap and trading services for gently used or never worn children’s clothing, footwear and accessories for registered members.

We have prepared the information below to ensure that your experience on our Site is one you will enjoy and recommend to your family and friends. The Site and its services are intended for adults, but your children can help you select the items that you seek to swap or trade.

 

The Swoondle Society

Overview of Terms and Conditions

 

  • The Swoondle Society facilitates the fair swapping and trading of gently used or never worn children’s clothing, footwear and accessories.  All items sent to Swoondle must be recently laundered and free of serious stains, defects and odors.
  • Members will be charged fees to use the service in accordance with the Membership Plan they have chosen.  If no plan is paid for the customer is not considered a member.  
  • Members will receive credit for items received (except for Prohibited Items), and such credit can be used to trade for available items on the Site.  For each item, set or grouping contributed, the member will be notified of the level of credit attributed to an item, set or grouping in the member’s account.  Each item will receive a separate credit (e.g. Level 1) that can be swapped for an item of the same level.  Swoondle may group multiple items to make one trade.  Credits may not be combined; for example, two Level 1 credits cannot be combined to swap for one Level 2 item. 
  • From time to time, Swoondle may post guidelines about the credit that may be expected to be assigned to a contributed item.  Swoondle reserves the right to modify its guidelines regarding credits at any item for any reason. 
  • All items displayed on the Site are swapped or traded “as is.”  Items available on the Site are not new, and information about these items may be limited.  Swoondle will endeavor to provide accurate information about all items posted for swapping on the Site.  You agree that you must evaluate each item, make your own judgment and bear the risk associated with your selection.
  • Please do not send Prohibited Items. The Swoondle Society reserves the right to donate or discard Prohibited Items.  Swoondle also reserves the right to give partial credit for low value items.
  • All contributed items become the sole property of The Swoondle Society.  No items given to Swoondle will be returned to members.
  • The Swoondle Society respects the privacy of its members.  Please read our Privacy Policy.
  • The full Terms and Conditions of the Swoondle Society govern all members and users of the swoondlesociety.com Site.

 

This Site is owned and operated by Swoondle in the United States of America. The mailing address for Swoondle is 200 Robbins Lane, Jericho, NY 11753. Please review the following terms of use, including an arbitration agreement, which govern your use of the Site (the "Agreement"). By agreeing to the terms and conditions of this Agreement, Swoondle grants members and users a limited license to access and use the Site and its services.  Please note that your use of the Site constitutes your agreement to follow and be bound by these terms. By accepting the terms of this Agreement, you acknowledge that you have read, understood, and agree to be bound by all of the terms, conditions and notices contained in this Agreement just as if you had signed this Agreement.  If you do not agree to these terms, please do not use this Site. Since Swoondle may revise this agreement from time to time, you should visit this page periodically to review the terms of your use or membership. Should you have any questions concerning any of our policies, please contact us.

 

  1. Use of the Site by Users and Members

The Site and its contents are intended solely for your personal, noncommercial use; any other use of the Site and its contents is prohibited without the prior written permission of Swoondle. Please do not reproduce, publish, display, modify, sell, or distribute any of the materials from Swoondle. You may, however, download or electronically copy and print any of the page contents displayed on the Site, but please remember that these are available for your personal, noncommercial use only. Should you choose to download, copy, or forward any Site materials via email, no right, title, or interest in those materials will be transferred to you. All design and content featured on the Site-including navigational buttons and images, artwork, graphics, photography, text, and the like-are copyrights, trademarks, trade dress, and/or intellectual property that are owned, controlled, or licensed by Swoondle, unless otherwise noted. This Site in its entirety is protected by copyright and applicable trade dress.

Please understand that our used children’s clothing and accessories are not stock items.  Once a member selects an item for trading, it will be removed from the Site and will not be available for other members, and, therefore, timing is important. We endeavor to present complete and accurate content and information on our Site at all times. Despite our efforts, there may be occasions when some of the information featured on the Site may contain incomplete data, typographical errors, or inaccuracies. Any errors are wholly unintentional and we apologize if erroneous information is reflected in item availability or in any way affects your individual experience with the Site. We will make every effort to display as accurately as possible the colors of the items that appear on the Site. However, due to monitor discrepancies, we cannot guarantee that your display of color will be accurate.  We reserve the right to amend errors or to update product information at any time without prior notice. In the event an item is listed as available due to photographical error, typographical error or other error, Swoondle shall have the right to cancel any transactions.  Please also note that the supply of children’s clothing and accessories will vary at different levels from time to time.  The service on the Site may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications.

We will make every effort to respond quickly to applicable email messages.  Please note that all of your comments, feedback, ideas, suggestions, and other submissions that are disclosed or submitted to our company through Swoondle shall become and remain the property of Swoondle. Any such disclosure or submission by you is a declaration of the full release of all proprietary claims and/or intellectual rights regarding your submission. However, we will not use your name in connection with any such materials, information, suggestions, ideas or comments unless we first obtain your permission.

 

  1. Membership Terms, Fees and Payments

Membership Benefits. As a member of The Swoondle Society, you will be entitled to the use of the Site and its services and to engage in fair swapping and trading of gently used or never worn children’s clothing and accessories under the terms of the Agreement and this Site as well as member support.  You may send us items permitted for swapping and trading, and you agree not to send us any Prohibited Items. All items sent to The Swoondle Society must be recently laundered and free of any stains, damage and odor.  Upon mailing an item for swapping and trading, the item become the sole property of The Swoondle Society, and the contributing member relinquishes any and all property rights or other rights in the item mailed to Swoondle.  No items mailed to Swoondle will be returned to the member for any reason.  Prohibited items will not be returned, and we reserve the right to donate for any purpose or dispose of Prohibited Items without notice to the member.  You may provide written information about items that you contribute for swapping and trading. 

The Swoondle Society will provide contributing members with a credit for each item received (except for Prohibited Items), and such credit can be used to trade for available items on the Site.  No credit will be provided for Prohibited Items.  Partial credit may be given in the event of sending low-value items.  The Swoondle Society will determine, in its sole discretion, the level of credit attributable to an item, set or grouping, and the member will be notified of the credit level in the member’s account.  Members agree to accept all credit attributions assigned by The Swoondle Society.  Swoondle reserves the right to place contributed items in a set or grouping.  From time to time, Swoondle may post guidelines about the credit that may be expected to be assigned to a contributed item, set or grouping, however, Swoondle reserves the right to modify its credit guidelines at any item for any reason.  Each item, set or grouping will receive a separate credit (e.g. Level 1) that can be swapped for an item, set or grouping of the same level.  Credits may not be combined; for example, two Level 1 credits cannot be combined to swap for one Level 2 item.  Swoondle also reserves the right to offer modified trading arrangements for limited time purposes.  Credits do not expire unless the member opts not to renew, or cancels, the membership.

Unless otherwise stated, the items available on the Site are not new nor in perfect condition and information about these items may be limited. While Swoondle will endeavor to provide complete and accurate information about all items posted for swapping and trading on the Site, you agree that you must evaluate and make your own judgment, and bear the risks associated with your selection.  Swoondle may rely on the information provided by contributing members without further verification and is not responsible for information provided by contributing members. All items displayed on the Site are swapped or traded “as is.”  The Swoondle Society does not make any guarantee, warranty or representation, expressed or implied, to any member with respect to any item posted on the Site, including without limitation, its merchantability or fitness for a particular purpose.

The benefits of your membership are available only while your membership is active and you account is in good standing, and the member’s trade credits will expire if membership is terminated or lapses.  You are considered a member when you are paying for a membership plan.   Swoondle reserves the right to modify the membership terms and benefits at any time and in its sole discretion.  As a member, you agree to not to take any action that would undermine The Swoondle Society, the Site or other members.

Terms for Membership. You must be 18 years or older to become a member. You must provide Swoondle with complete and accurate registration information and update the accuracy and completeness of such information. The failure to do so will constitute a breach of this Agreement. As part of the registration process, you will be assigned a username and you will select a password. You understand that you may not (i) select or use a name of another person with the intent to impersonate that person, or (ii) use the rights of any person without authorization. You are responsible for all usage or activity on Swoondle via your account, and you must keep your account password secure. Distribution of your password to others for access to Swoondle is expressly prohibited. You are solely responsible for maintaining and protecting the confidentiality of your username and password, and are fully responsible for all activities that occur under your username and password. You agree immediately to notify us, of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or billing information.

Fees.  All membership subscriptions are automatically renewing.  Your membership subscription will be automatically renewed and your billing method will be charged unless you opt out or cancel by following the instructions in this Agreement. The renewal of the membership takes place subject to the terms and conditions in force on the date of renewal. Please ensure that you correct any information that has changed in respect to your payment method to prevent your subscription lapsing due to us being unable to process your payment. Billing charges for other payment transactions on the Site will be processed immediately when your order is taken and according to the billing details displayed.

Cancellation and Opting Out of Renewal. You may (i) cancel at any time, or (ii) opt out of renewing your membership by email via the contact information below or logging into your account page on the Site at least three business days before the renewal date and following the cancellation instructions there. If you do not let us know that you want to terminate your subscription at least three business days prior to the end of the current subscription period, the payment for the renewal period of the subscription will be processed.

Cancellation of your membership will result in the expiration of any and all remaining trading credits in a member’s account.  No funds will be returned.

Termination or Suspension of Your Account. If we believe, in our sole discretion, that you are in breach of this Agreement or are acting inconsistently with the letter or spirit of this Agreement, we may limit, suspend or terminate your access to the Site. In such a case, no portion of your membership subscription payment will be refunded and the member’s trade credits will expire. We also reserve the right to suspend or terminate your access to the Site for any reason, and should we decide to suspend your access for any reason other than a breach by you, we will refund to you any unused portion of your subscription payment, which will be your sole and exclusive remedy upon such suspension or termination.

Fees Subject to Change. Swoondle may change or amend its membership fees at any time. Each renewal of your membership will be at the price currently in effect. Members who cancel their subscription may be required to pay reinstatement fees.  Swoondle shall provide you with reasonable notice of any change in fees prior to the effective date of the new fees by email or other reasonable means such as a notice on the Site or in membership communications. If you do not wish to continue with your subscription due to the new fees, you may opt out of renewal or cancel as set forth above.

 

  1. Communications Between Swoondle and You

We may contact you (via the Site, electronic mail, physical mail or otherwise) for the purpose of informing you of changes or additions to the Site or services, or of any related products and services. You agree that any notice, agreement, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Use of the Site or registration as a member results in your information being stored and processed in the United States, and you specifically consent to Swoondle’s storage and processing of the personal data you submit. Please see our Privacy Policy for further information on how we manage and process your personal information and your rights to such data.

 

  1. Modifications to this Agreement

Swoondle has the right, at its sole discretion, to modify this Agreement, as well as the Site, it content, and the services, at any time. Changes will be posted on the Site and/or sent via email. If any portion of this Agreement or any change to the Site, content, or the services is unacceptable to you or will cause you to no longer be in compliance with the Agreement, you may cancel your membership by following the instructions in this Agreement. Continued use of the Site or the services now or following posted notices of changes to this Agreement means that you have accepted and agree to be bound by the changes.

 

  1. Liability Disclaimer

Swoondle expressly disclaims any implied warranties, conditions and/or representations, including but not limited to implied warranties of merchantability, fitness for a particular purpose, or non-infringement, to the full extent permissible under applicable law. We offer the Site and its content and services on an "as is” and “as available” basis and do not accept responsibility for any use of or reliance on the Site, its content or services, or for any disruptions to or delay in the services. In addition, we do not make any representations as to the accuracy, comprehensiveness, completeness, quality, currency, error-free nature, compatibility, security or fitness for purpose of the Site, its content or services. Swoondle does not guarantee the adequacy of the Site or services or compatibility thereof to your computer equipment, mobile devices, or environment and does not warrant that the Site, the services, their servers, or any emails which may be sent from Swoondle are free of viruses or any other harmful components.

To the fullest extent permissible under applicable law, we limit our liability. In particular, we shall not be liable for any damages that we cause unintentionally and we shall not be liable to you for any actual, incidental, indirect or consequential loss or damage howsoever caused, provided that nothing in this Agreement will be interpreted so as to limit or exclude any liability which may not be excluded or limited by law. For example, we shall not be liable to you for any of the following types of damages, whether in contract, tort (including negligence and strict liability) or otherwise (whether such loss or damage was foreseeable, known or otherwise): (i) loss of revenue; (ii) loss of actual or anticipated profits; (iii) loss of the use of money; (iv) loss of anticipated savings; or (v) loss or corruption of, or damage to, data, systems or programs. Because some states/jurisdictions do not allow exclusions as broad as those stated above or limitations of liability for consequential or incidental damages, the above limitations may, in whole or in part, not apply to you. If you are dissatisfied with any portion of the Site or the services, or with any clause of these terms, as your sole and exclusive remedy you may discontinue using the Site and the services. Although we will not be liable for your losses caused by any unauthorized use of your account, you may be liable to others as well as to us if your account is used in violation of the terms and conditions of this Agreement.

You agree to defend, indemnify and hold harmless Swoondle, its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Site and services; (ii) your violation of any term of this Agreement; or (iii) your violation of any third-party right, including without limitation any copyright, property, or privacy right. This defense and indemnification obligation will survive this Agreement and your use of the Site and services.

 

  1. Governing Law; Arbitration; Disputes

By using the Site or services, you agree that the Federal Arbitration Act, applicable federal law, and the law of the State of New York, without regard to its principles on conflicts of laws, will govern these Terms and Conditions, your use of the Site and the services, and any dispute of any sort that might arise between you and Swoondle.

If a dispute arises between you and Swoondle, our goal is to provide you a neutral and cost effective means of resolving the dispute quickly. To that end, you agree to first contact Swoondle customer support by phone, email or mail via the contact information below to describe the problem and seek a resolution. If that does not resolve the issue, then you and Swoondle agree that any dispute or claim relating to your use of the Site or services will be resolved through binding arbitration, rather than in court.  In addition, you and Swoondle both agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights. If for any reason a claim proceeds in court rather than in arbitration, you and Swoondle each waive any right to a jury trial.

You and Swoondle agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class, consolidated, or representative action. Further, unless both you and Swoondle agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the foregoing, this arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. This entire arbitration provision shall survive termination of this Agreement and the termination of your membership.

To begin an arbitration proceeding, you must send a certified letter requesting arbitration and describing your claim to Swoondle Inc., 12 Hawk Drive, Lloyd Harbor, New York New York 11743.  The arbitration will be conducted in New York County by the American Arbitration Association (AAA) under its rules, including the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by this Agreement (collectively, "AAA Rules"). The AAA Rules and costs are available online at www.adr.org or by calling the AAA at 1-800-778-7879.

California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

If you are a copyright or trademark owner (or authorized to act on behalf of the copyright or trademark owner) and believe that your work’s copyright or trademark has been infringed, please report your notice to use by providing a written notification of claimed infringed that includes all information reasonably sufficient to describe the claim and any information that may be required by law.  Swoondle will investigate inquiries that have followed this procedure.

 

  1. Miscellaneous

Promotions. Any sweepstakes, contests, raffles or other promotions made available by Swoondle may be governed by rules that are separate from this Agreement. If you participate in any promotions, please review the applicable rules as well as the Privacy Policy. If the rules for a promotion conflict with this Agreement, the promotion rules will apply.

Assignment. We reserve the right to assign or transfer our rights and obligations under this Agreement. As Swoondle continues to develop its business, it might sell or buy other companies or assets or be acquired or have substantially all of its assets acquired by a third party. In such transactions, customer information generally is one of the transferred business assets. You hereby consent to the transfer of your information as one of the transferred assets and to be used for any purpose allowed under this Agreement. These terms are personal to you and, as a result, you may not, without the written consent of Swoondle, assign or transfer any of your rights and obligations under this Agreement. There shall be no third-party beneficiaries to this Agreement. 

Severability. In the event that any term of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of these terms shall remain valid and enforceable. We can replace any term that is not valid and enforceable with a term of similar meaning that is valid and enforceable.

Waiver. Any failure by us to enforce any term of the terms of this Agreement shall not affect our right to require performance at any subsequent time, nor shall the waiver by us of any breach by you of any provisions of these terms be taken to be a waiver of the provision or provisions itself.

Complete Agreement. This Agreement, including any terms, conditions and policies expressly referenced herein, together with any legal notices published on the Site, shall constitute the complete understanding and agreement between you and us, and shall supersede and cancel any prior or contemporaneous understandings and agreements, except as expressly provided otherwise by Swoondle.

Force Majeure.  We are released from our obligations under these Terms and Conditions to the extent fulfillment of such obligations is prevented or delayed because of Force Majeure event.  Force majeure means an impediment beyond the control of either party of agreement, which could not reasonably be foreseen at the time of entering the Agreement and the effects of which could not reasonably be avoided or overcome.

 

  1. Contact Us

If you have any questions or comments, or would like to discuss your membership, please contact us via the following information: by email: swoondle@swoondlesociety.com, by mail: 200 Robbins Lane, Jericho, NY 11753.