SwapaCD :: Terms of Use

Club Basics

By joining this Site, you become a member of a national club committed to sharing compact disks (CDs). Each member lists books he or she is willing to send out upon request. After listing your first 10 CDs, you get a 'startup' CD Credit (credit) good toward the selection of any other club member's CDs (Startup credit available to eligible accounts only. We reserve the right to reclaim credits obtained by site misuse/Terms of Use violation). With your credits, you may order CDs (one per credit) from other members, who will ship them to you at their expense. You will pay a $0.49 transaction fee for each CD you order.

When other members order CDs from you, you ship the CDs at your expense and when the books are received, you earn one credit for each CD received by another club member. If you use our Printable Postage feature, you can mail CDs without visiting the Post Office.

At present, Site membership is free, but we may institute a charge at some point in the future to defray the cost of providing this valuable service. If we do add any fees, you will be given notice and have the opportunity to accept or decline the charges.

That is the service in a nutshell. There are no hidden gimmicks. We won't sell your name or e-mail address to spammers. You won't receive an avalanche of junk mail. The only emails we send out are ordering and shipping confirmations and an occasional e-mail newsletter detailing Site improvements or other service additions. The rest of this "Terms of Use" specifies our respective rights in further detail. Please read it. We hope you will enjoy listening, swapping and saving with the club!
License

SwapaCD grants you a non-exclusive, non-transferable, license to access, use and display this Web site (the "Site") and to use the associated service, as long as you comply with this Agreement in its entirety. This Site is only for your personal, noncommercial use. You promise not to interfere in any way with the operation of this Site.
Membership Eligibility

This Site may be used only by persons 18 years of age or older. SwapaCD makes no representations whatsoever regarding the suitability of any items exchanged through this Site.

One Account per Person, Maximum of Two Accounts per Address or Household
No individual is permitted to register more than one account. No individual may register "for" another person, or manage more than one account. No more than two accounts are permitted per address or household. Only one account per household will be eligible for startup Credits.

No Institutional Membership
Membership is permitted for individuals only. No organization, institution or other association may become a member of the service.

Registration in Own Name
Accounts may be registered only by the individual seeking membership. Registration of accounts in a name other than the registrant's, fictitious or real, is expressly prohibited. Such use constitutes fraud and may give rise to criminal prosecution and substantial damages. SwapaCD prosecutes fraud to the fullest extent of the law.

Transferability
Your account and credits are not transferable.

Correctional Institution Inmates Prohibited
This Site may not be used to ship CDs to or from any jail, prison or correctional facility of any kind. Inmates at any jail, prison, or correctional institution are expressly prohibited from using this service. By agreeing to these Terms of Use, you acknowledge that you are not currently incarcerated in any jail, prison, or correctional facility of any kind and further agree not to allow your account to be used by any inmate at any jail, prison, or other correctional facility.
Exchanged Material

By using this Site, you agree to participate in the free exchange of personal property, including but not limited to books, audio books, videotapes, DVDs, video games, CDs, and other items as may be deemed appropriate for inclusion by the Site.

Listing or Posting
By listing or posting items for selection by the exchange community, you aver that you are the sole owner of the items and have the unrestricted right to transfer ownership thereof. By posting or listing an item for exchange with the Site, you agree to ship the item when requested. The posting or listing of items without the intention of exchanging them when requested is expressly prohibited and may constitute wire or mail fraud in violation of U.S. and state law. The listing or posting of items for exchange that you do not have in your physical possession is expressly prohibited.

Intellectual property
You agree that all items posted and shipped are legal and do not infringe any intellectual property rights, including but not limited to copyrights, trademarks, and patents.

Sexually explicit, pornographic, or obscene material
You agree not to post or ship any items of a sexually explicit, pornographic, or obscene nature.

Defective items
Members who have an item returned to them as defective agree not to re-list that same item for exchange unless and until the defect has been resolved.

Items in violation of law
You further agree that you will not post or ship any items in violation of the laws or regulations of any state, city, county, parish, township, municipality, federal agency, or other governmental entity.

Additional Mailings
This site is designed for the exchange of media items requested by other club members. Members shall not include additional material such as advertising, commercial solicitations, political materials, religious tracts or similar items in any requested mailing. Members further agree not to use member names, addresses, member lists, or any subset thereof for the development of mailing lists or the distribution of advertising, commercial solicitations, political materials, religious tracts or similar items, whether or not included with requested media.

No Item Review
SwapaCD cannot review items posted to the Site. You agree to assume full responsibility for any items posted to your account and shipped by you. You agree to indemnify and hold SwapaCD harmless for any violations of law or regulation that arise in connection with the posting to your account of items resulting in civil or criminal liability.

Ownership Transfer
By shipping a requested item, you are transferring all ownership rights that you may have in such item and forever waive any claims thereto. Items exchanged through this service become the sole property of the recipient with no obligation to re-list the item.
Shipping

You agree to respond to all valid requests to ship posted items in a timely manner. Failure to promptly ship posted items may result in a forfeiture of CD Credits for future exchanges. You agree to ship all items at your own expense.

Address
Members are required to provide a current, dependable, and secure mailing address at which items may be reliably received. In the event of a change of address, Members are responsible for updating such changes to their Site account. Failure to report change of address in a timely fashion may result in loss of CD Credit for misaddressed items.

Item Receipt
Members shall promptly report to Site when items have been received in order to facilitate credit for shipping members. Failure to promptly report item receipt may result in forfeiture of CD Credits and/or account suspension, in the sole discretion of Site.

Lost or Damaged Items
SwapaCD is not responsible for any item that is shipped by a member and is lost or damaged in the shipping process. CD Credits are only earned when items are received in good condition by the requesting member. Items lost or damaged in transit are the sole responsibility of the shipping member. In the event that there is a dispute between members regarding the shipment or condition of an exchanged item, SwapaCD will attempt to mediate the dispute and may, in its sole discretion, grant CD Credits or other compensation to members who have shipping or condition problems.

Members making inappropriate reports of damaged or lost items may be subject to CD Credit forfeiture and/or account suspension, in the sole discretion of Site.
Posted Communications

SwapaCD may make available to users of the Site, message boards, opinion forums, bulletin board services or other interactive communication facilities. SwapaCD cannot review all communications made on or through the Site. However, SwapaCD reserves the right to monitor the Forums and edit, modify or delete any materials which SwapaCD in its sole discretion determines to violate this Agreement or to be in any other way offensive or contrary to any SwapaCD policy, either written or unwritten. SwapaCD further reserves the right use posted materials for its own purposes for marketing, communication, advertising, or any other purpose at the sole discretion of SwapaCD. You agree not to use SwapaCD 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.

SwapaCD.com members may, if they choose, submit their original work in the form of reviews and Tutorials, or other communications forums that Site may choose to make available. By posting material to these sections, users agree to the following terms:

Those submitting original material grant SwapaCD an irrevocable license to publish posted material, either on this or an affiliated web site, or in some hardcopy form, for a period of five years from the date of submission, without any compensation to the author whatsoever. At the conclusion of any such five year license period, members who wish to terminate the right of SwapaCD to publish or make available posted communicatiosn shall notify SwapaCD, in writing, of their intent to terminate SwapaCD's license and shall allow SwapaCD sixty days following receipt of such notice to remove any posted commications from Site.

Submissions must be original. Those submitting material agree to indemnify and hold SwapaCD harmless for any unauthorized posting of copyrighted works.

Submissions may not be libelous or defamatory. Those submitting material agree to refrain from submitting any libelous or defamatory material and to indemnify and hold SwapaCD harmless for any such postings.

Submissions may not be illegal, threatening, sexually explicit, pornographic, obscene, or otherwise objectionable. Those submitting material agree to refrain from submitting such material and to indemnify and hold SwapaCD harmless for submissions that result in liability for SwapaCD in any way whatsoever.

Participants who comment on submitted works agree to do so in a respectful manner and avoid engaging in personal attacks or demeaning others' efforts. Participants understand and agree that the purpose of this service is to provide a forum for expression and the exchange of ideas between writers and readers. Those who do not respect the rules may be banned from participation.

SwapaCD may make available to members links to other sites not owned or affiliated with Site. Site makes no representations whatsoever regarding the suitability or appropriateness of linked sites, provides no endorsement of outside companies, nor accepts any liability whatsoever for such links.
Box-O-CDs

Participants in the Box-O-CDs service agree to exchange multiple items with other members without the use of credits. Each Box-O-CDs participant bears their own expenses for shipping and also bears the risk of nonreceipt of or damage to the exchanged items. In the event of nonreceipt, damage, or other problems associated with a Box-O-CDs exchange, SwapACD assumes no liability. SwapACD may, in its sole discretion, attempt to mediate disputes between dissatisfied Box-O-CDs participants or provide compensation in the event that mediation is unsuccessful, but is under no obligation to do so. Box-O-CDs participants agree to indemnify and hold SwapaCD harmless from any liability associated with participation in the Box-O-CDs service.
Fees and Payment

At present, the use of the Site is free, except that users agree to mail items at their own expense and pay a per item transaction fee. SwapACD reserves the right to institute a monthly or yearly fee for continuing use of the Service, provided that all users will have the opportunity to opt out before incurring any charges. SwapACD also reserves the right to charge fees for incidental benefits associated with membership. Fees may be charged for credits, Box-O-CDs participation, delivery confirmation, wish lists, or other services, in the sole discretion of SwapACD. Fees may be added, discontinued, or changed at any time without notice.
Credit Accounts

When you order a CD, one credit will be subtracted from your credit account. When you ship a CD and the recipient acknowledges receipt, you get a credit added to your credit account. Credits may also be purchased for a nominal fee from SwapaCD. Credits have a cash value of 1/20th of one cent. SwapaCD reserves the right to change the cash or exchange value of credits at any time without prior notice and without any compensation to members with existing credits.
Dormant Accounts
An account is dormant when no items have been ordered, shipped, or purchased within any 1 year period. Accounts with a positive credit balance that are dormant for longer than 1 year will be assessed a dormant account service charge of one credit per month until all credits have been depleted or the accounts is reactivated.
Money Accounts

SwapaCD accepts credit cards, money orders, checks, and PayPal as a means of adding funds to a member's money account. SwapaCD Money can be used to purchase SwapaCD Printable Postage, SwapaCD Delivery Confirmation, Custom DC and other services as defined in the Kiosk; SwapaCD Money has no redeemable cash value. SwapaCD reserves the right to change the price of credits and other goods or services at any time without prior notice and without any compensation to members with existing funds in their money accounts. Funds added to a member's account are earned by SwapaCD when deposited and are non-refundable.
Dormant Accounts
An account is dormant when no items have been ordered, shipped, or purchased within any 1 year period. Accounts with a positive cash balance that are dormant for longer than 1 year will be assessed a dormant account service charge of $1 per month until the balance is zero or the account is reactivated.
Service Termination

SwapaCD reserves the right to terminate service at any time without notice. In the event of service termination, Site members will not be entitled to any compensation for outstanding credits.
Connection Charges

You are solely responsible for any fees involved in connecting to this Site, including telephone and long distance charges, computer charges, online subscriptions, etc.
Refunds

If the Site institutes a monthly or annual fee, users who are dissatisfied with this service may cancel within the first 30 days of use and receive a refund, computed according to the following schedule:
- No credits used: Full refund
- 1 credit used: 50% refund
- 2 or more credits used: No refund
Regardless of the number of credits used, no refunds will be issued after 30 days of service.
Distribution of Site Materials, Posted Items

You agree not to post, transmit or otherwise distribute site materials, including but not limited to, product lists and program terms.
Commercial Use Prohibited

This Site and the associated service are to be used for non-commercial purposes only. Commercial use of the Site or associated service is absolutely prohibited and constitutes a breach of this contract, giving rise to substantial damages. Commercial use includes but is not limited to the following:
- Any systematic effort to resell ordered items online or in person
- Any use of bots or other systems to repeatedly access the site in an automated fashion
- Use of the search function on the site for any purpose not directly related to participation in the cd exchange
Commercial use will result in immediate cancellation of service and forfeiture of credits. You hereby agree that damages from the commercial use of this site are difficult to compute. Damages from breach of this commercial use provision shall therefore be set at $10 per unauthorized Site visit. You hereby agree that such damages are a reasonable estimate of actual damages and you waive your right to contest these damages in a court of law or other proceeding.
Competitor Use Prohibited, Liquidated Damages for Competitive Use

This Site and the associated service are to be used for non-competitive purposes only. Use of the Site or associated service by competing businesses, affiliates, employees, or other associates is absolutely prohibited and constitutes a breach of this contract, giving rise to substantial damages.

If you are an owner, employee or other associate of a competing site (other than simply a member), you hereby agree that damages from the unlicensed visitation of this site are difficult to compute. Damages from breach of this competitor use provision shall therefore be set at $10 per unauthorized Site visit. You hereby agree that such damages are a reasonable estimate of actual damages and waive your right to contest these damages in a court of law or other proceeding.
Copyrighted Materials

These Terms of Use and other written, graphic, and pictorial materials on this site are fully protected by U.S. and international copyright laws. Duplication, distribution, or other use of these materials without express written permission of SwapaCD is expressly prohibited. Any reproduction, storage, transmission, or other use of the materials on this site, including, but not limited to these Terms of Use, without the express written permission of SwapaCD will result in substantial civil and criminal liability.
Password

Use of this Site requires a password. You agree to maintain confidentiality of your password and are solely responsible all activities associated with its use, whether authorized or unauthorized. Sharing of account passwords with other persons is a violation of this agreement and may result in account termination.

If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number stored on the Site) you should notify SwapaCD immediately of the problem to avoid possible liability for unauthorized charges to your account or unauthorized use of your credits.
Trademarks & Copyrights

The web pages on this Site are owned by SwapaCD and are the sole property thereof. SwapaCD retains all rights, title, and interest in the content of these web pages. You agree not to use any trademarks, service marks, names, logos, or other identifiers of SwapaCD without the express written consent of SwapaCD.
Patents

One or more patents apply to this Site and its features and business processes, including but not limited to US Patents and patents pending and all corresponding foreign counterparts.
Copyright complaints

SwapaCD respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact SwapaCD and provide the following information:
- A description of the copyrighted work that you claim has been infringed;
- Your address, telephone number, and e-mail address;
- A 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;
- A sworn statement that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
You may contact SwapaCD at the following address:

3651 Peachtree Parkway Suite E-390
Suwanee, GA 30024
DISCLAIMER OF WARRANTY

ALL ITEMS EXCHANGED THROUGH THIS SITE AND THE ASSOCIATED SERVICE ARE PROVIDED BY THE SITE MEMBERS "AS IS." SWAPACD MAKES NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, SECURITY, ACCURACY, OR NON-INFRINGEMENT WITH RESPECT TO ANY ITEMS EXCHANGED THROUGH THIS SITE OR THE ASSOCIATED SERVICE.
Limitation on liability

USE OF THIS SITE IS AT YOUR OWN RISK. UNDER NO CIRCUMSTANCES SHALL SWAPACD BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE THE SWAPACD SITE OR ASSOCIATED SERVICES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHER THEORY OF LIABILITY) EXCEED THE AMOUNT PAID BY YOU FOR ACCESSING THE SWAPACD SITE.
No class actions

You forever waive your right to participate in any class action against SwapaCD, its successors, subsidiaries, affiliates, or assigns, whether in a court of law, administrative body, through arbitration, or any other process in a joint action with other similarly situated complainants. No legal, arbitrative, administrative, or other action against SwapaCD, its successors, subsidiaries, affiliates, or assigns, may be combined with any other action and you agree that you will consent to any motion to sever any action of which you are a part and proceed against SwapaCD individually.
Arbitration

You agree that any claim or dispute against SwapaCD, its successors, subsidiaries, affiliates, or assigns, whether related to this agreement or otherwise, and any claim or dispute related to this agreement or the relationship or duties contemplated under this contract, including the validity of this arbitration clause, shall be resolved by binding arbitration, except that, to the extent you have in any manner violated or threatened to violate SwapaCD's rights, SwapaCD may seek injunctive or other appropriate relief in any state or federal court in the state of Georgia, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted by the National Arbitration Forum, under the Code of Procedure then in effect, with costs of the proceedings born equally by you and SwapaCD. Any award of the arbitrator may be entered as a judgment in any court of competent jurisdiction. If for some reason this arbitration provision does not apply, we each waive our right to any trial by jury.
Termination

SwapaCD reserves the right to immediately terminate the service and forfeit all credits of any member who SwapaCD determines, in its sole discretion, has violated one or more conditions of this contract. In the event such termination occurs, SwapaCD has no obligation whatsoever to refund any portion of fees paid or to pay compensation for credits forfeited or lost use of Site privileges.
Agreement Modifications

SwapaCD reserves the right to alter this agreement at any time, without consent. You agree that all changes apply immediately to your relationship with SwapaCD from the moment the changes are posted to the Site. Continued use of the Site or associated service following any change to the Terms of Use constitutes acceptance of all changes thereto.
Force Majeure

SwapaCD shall not be liable in damages for any delay or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of SwapaCD.
Severability

In the event that any provision of this Agreement shall be found to be void or unenforceable, such finding shall not be construed to render any other provision of the Agreement either void or unenforceable, and all other provisions shall remain in full force and effect unless the provisions which are void or unenforceable shall substantially affect the rights or obligations granted to or undertaken by either party.
Entire Agreement

This Agreement constitutes the "entire agreement" between the parties. No warranties, conditions, or representations (including any that may be implied by statute) have been made and there are no agreements between the parties other than those specifically set forth herein. No individual modifications to this Agreement shall be of any force or effect unless reduced to writing and signed by both parties hereto and expressly referred to as being modifications of this Agreement.
Forum Selection

This Agreement and the documents to be entered into pursuant to it shall be governed by and construed in accordance with the law of the state of Georgia, USA, with Atlanta, Georgia, USA the site of any hearings or other proceedings pursuant to this agreement.

The "Terms of Use" contained in this document constitutes a legal contract between you and SwapaCD, LLC, organized under the laws of the State of Georgia with its principle place of business at 3651 Peachtree Parkway Suite E-390, Suwanee, GA 30024.