Swaylock's Surfshop Participation Agreement

Participation Agreement

Welcome to the Swaylocks.com site (the "Site") and our selling services (the "Services") termed Swaylock's Surfshop. Any person who wants to access the Site and use the Services to sell items must accept the terms and conditions of this Participation Agreement without change. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS PARTICIPATION AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE SITE ARE INCORPORATED BY REFERENCE.

Swaylocks Services, Inc. ("Swaylocks") reserves the right to change any of the terms and conditions contained in this Participation Agreement or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. All notice of changes to this Participation Agreement will be posted on the Site for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING SWAYLOCK'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS PARTICIPATION AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.

1. Eligibility. Use of the Site and Services is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to use the Services. To register, you must provide your real name, address, phone number, and e-mail address.

2. Sellers' Listing Fees and Payment Terms. Please review the Fee Schedule and Payment Terms contained in the Help section for Swaylock's Surfshop Classifieds listing fees. All listing fees are in U.S. dollars unless stated otherwise and are incorporated herein by reference. The Fee Schedule and Payment Terms may vary in the future. The Fee Schedule and Payment Terms in effect on the date of listing the item shall govern the transaction. You should check the fees and terms each time you participate. All fees, including but not limited to subscription plan fees, are payable upon demand on a Visa, MasterCard, American Express, Discover, JCB, or Diners Club credit card. By listing an item for sale on the Site, you authorize Swaylocks to charge your credit card for amounts due.

3. Applicable Policies and Guidelines. You agree to abide by the procedures and guidelines--contained in the Help section--for conducting fixed price sales, which are incorporated by reference into, and made part of, this Participation Agreement. The procedures and guidelines contained in the Help section explain the processes and set out acceptable conduct and prohibited practices. We may change these procedures and guidelines in the future, and such changes will be effective immediately upon posting without notice to you. You should refer regularly to the Help section to understand the current procedures and guidelines for participating and to be sure that the items you offer for sale can sold on the Site.

4. Swaylocks's Role. Swaylocks provides a platform for third-party sellers ("Sellers") and buyers ("Buyers") to negotiate and complete transactions. Swaylocks is not involved in the actual transaction between Sellers and Buyers and is not the agent of and has no authority for either for any purpose. As a Seller, you may list any item on the Site unless it is a prohibited item as defined in the procedures and guidelines contained in the Help section, or otherwise prohibited by law. Without limitation, you may not list any item or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, or fraudulent. It is up to the Seller to accurately describe the item for sale or auction. As a Seller, you use the Site and the Services at your own risk.

5. The Swaylocks Payment Service. IN ORDER TO SELL ITEMS IN MARKETPLACE YOU MUST REGISTER WITH PAYPAL AND USE THE PAYPAL PAYMENT SERVICE (the "Payment Service").

a. The Payment Service facilitates the purchase of Seller items listed on the Site. A Buyer's authorized credit card payment ("Payment Transaction") is credited to a registered Seller's Account Summary, and funds are periodically transferred to the Seller's designated PayPal account ("Seller's Account"). The Buyer may authorize a Payment Transaction with any major credit card accepted by Swaylocks. The Payment Service helps facilitate transactions and is not the purchaser of the Seller's goods. Seller will resolve any dispute directly with Buyer and not through the Payment Service. Seller must register online with Swaylocks to use sell on Swaylocks and register with PayPal to use the Payment Service. You must provide us true and accurate information when registering and must maintain and update that information as applicable. Seller will not impersonate any person or use a name he or she is not legally authorized to use.

b. The Payment Service is available only to individuals and others who meet the terms of eligibility for the Swaylocks online selling community, who have been issued a credit card by a United States bank, and whose applications are acceptable to Swaylocks. Sellers waive any rights with respect to the Service when shipping to an address other than that provided by the Service.

c. The Payment Service is generally available seven (7) days per week, twenty-four (24) hours per day, except for scheduled downtime due to system maintenance. We can initiate Payment Transaction credits to Seller's Account only on a Business Day when the automated clearinghouses are open for business. For purposes of this Participation Agreement, a Business Day is a Monday through Friday, excluding federal banking holidays. We will send a receipt to Seller via e-mail for each completed transaction.

d. When your item sells, Swaylock's Surfshop collects full payment from the buyer and then deducts a commission of $0.79 plus 10 percent of the sales price. The remaining payment is credited to your Swaylock's Surfshop Member Account. Swaylock's Surfshop automatically transfers your earnings to your PayPal account on the 1st and the 15th of every month. No separate or hidden fees are assessed on Swaylock's Surfshop sales. If your item doesn't sell during the listing period, your listing is closed and you pay nothing. We will confirm via e-mail that your listing has ended, and will include easy instructions about how to relist your item.

e. Transfers to the Seller's PayPal Account will generally be credited within five Business Days of the date we initiate the transfer. On occasion, we may send Seller a paper check instead of an electronic credit to Seller's PayPal account.

f. Seller must provide a full refund to any Buyer who remits payment, either directly or through Swaylocks, if the item cannot be shipped at the close of the sale. Seller must provide the refund promptly, but in no case later than thirty (30) days following the close of the sale. Refunds can be initiated by following the return and refund guidelines outlined in the help section of the site.

g. As a security measure, we may, but are not required to, impose transaction limits on some or all Buyers and Sellers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to Seller: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a Buyer to withdraw from a transaction because the Payment Service is unavailable following the commencement of a transaction.

h. We reserve the right to delay initiating the transfer of Payment Transaction credits to a Seller's PayPal account (or sending paper checks) pending an investigation if we, in our sole discretion, believe Buyer or Seller may have violated the Participation Agreement. Notwithstanding any other provision of this Participation Agreement, if we determine, in our sole discretion, that Seller has violated this Participation Agreement, we may refuse to deliver a Payment Transaction credit to Seller and may instead maintain the amount of such credit in a trust account or may return the amount of the credit to Buyer. We will not be liable to Seller if we act in accordance with the provisions of this Section.

i. All notices will be sent by e-mail or will be posted on the Swaylocks Web site. We will send notices to Seller at the e-mail address maintained in Swaylocks's records for Seller. Seller will monitor his or her e-mail messages frequently to ensure awareness of any notices sent by us. Seller will send notices to us at the following address: feedback@swaylocks.com E-mail notices are deemed written notices for all purposes for which written notices may be required. E-mail notices are deemed received the Business Day after transmission if properly addressed to the intended recipient. If not sent by e-mail, notice may be provided in writing and mailed U.S. Mail, postage paid, First Class mail properly addressed or personally delivered by express courier such as Federal Express. First Class mail is properly addressed if sent by us to the address maintained in our records for Seller. First Class mail is properly addressed if sent by Seller to the current address published by us on our Web site. First Class mail is deemed received three Business Days after it is deposited in the U.S. Mail. A notice sent by express courier is deemed received when personally delivered to the intended recipient or to a person with apparent authority to receive such delivery on behalf of the intended recipient.

j. There is no fee for registering for a PayPal account. The fees for using the PayPal/PayPal in Swaylock's Surfshop are included in the Swaylock's Surfshop/Commission structure fees. We may, in our sole discretion, waive, reduce, or reverse charges or fees for a specific transaction.

k. We may refuse service to anyone for any reason. We may earn interest or other compensation from the balances in our bank accounts that result from the timing difference between our being paid by Buyer and our bank account being debited to pay Payment Transaction credits to Seller. We reserve the right to seek reimbursement from Seller if we, in our sole discretion provide a refund to Buyer if Seller cannot promptly deliver the goods, discover erroneous or duplicate transactions, or receive a chargeback from Buyer's credit card issuer for the amount of Buyer's purchase from Seller. We may obtain such reimbursement by deducting from future payments owed to Seller, reversing any credits to Seller's PayPal account or seeking such reimbursement from Seller by any other lawful means.

l. Seller may terminate his or her participation in the Swaylock's Surfshop Service at any time by giving notice to us, and we may terminate Seller's participation in the Swaylock's Surfshop Service at any time by giving notice to Seller. Upon termination, Seller must pay us whatever fees were incurred prior to the effective date of the termination. Also upon termination, any pending transactions will be canceled.

6. Swaylocks Reservation of Rights. Swaylocks retains the right to immediately halt any fixed price sale, prevent or restrict access to the Site or the Services, or take any other action to restrict access to or availability of objectionable material, any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by the procedures and guidelines contained in the Help section.

7. Swaylocks Participation. Swaylocks and its affiliates itself may participate in sales from time to time. When Swaylocks or its affiliates offers goods for sale at Swaylock's Surfshop, it is no different than any other Seller engaged in a sale of goods and will abide by the same procedures and guidelines contained in the Help section. In addition, employees of Swaylocks and its affiliates are permitted to participate in their personal capacity (i.e., not as Swaylocks employees, representatives, or agents of Swaylocks or its affiliates) in the transactions conducted through this Site (unless they have confidential information about a particular item). Employees of Swaylocks and its affiliates, when participating in any transaction in their personal capacity, are subject to this Participation Agreement and the same procedures and guidelines contained in the Help section as any Buyer or Seller on this Site.

8. Your Transactions

a. For fixed price sales, the Seller is obligated to sell the goods at the listed price to Buyers who meet the Seller's terms. By listing an item in a fixed price sale, you represent and warrant to prospective Buyers that you have the right and ability to sell, and that the listing is accurate, current, and complete and is not misleading or otherwise deceptive.

b. For fixed price sales, Seller will determine the purchase price for each item he or she lists on the Site via and subject to Swaylocks.com's standard functionality for listing the purchase price; provided, that Seller must abide by the same procedures and guidelines contained in the Help section with respect to pricing.

9. Your Obligation. By entering into this Participation Agreement and posting a listing fixed price sale, you agree to complete the transaction as described by this Participation Agreement. You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable.

10. Sales, Use, or Similar Taxes. You agree that it is the Seller's and the Buyer's responsibility to determine whether sales, use, or similar taxes apply to the transactions and to collect, report, and remit the correct tax to the appropriate tax authority. You also agree that Swaylocks is not obligated to determine whether sales, use, or similar taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any transaction.

11. Refund Obligation. If refunds are offered by the seller, Sellers must provide a full refund directly to any Buyer who remits payment, whether the Buyer paid directly or through Swaylocks, if the item cannot be shipped at the close of the sale. Seller must provide the refund promptly, but in no case later than thirty (30) days following the close of the sale. Any Buyer who believes he/she may be entitled to a refund on this basis can contact the Seller directly.

12. Password Security. Your password may be used only to access the Site, use the Services, electronically sign your transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site. If your password is compromised, you must change your password.

13. Illegal Activity

a. Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name or use an invalid or unauthorized credit card. You may not impersonate any participant or use another participant's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and Swaylocks will cooperate to ensure that violators are prosecuted to the fullest extent of the law.

b. Investigation. Swaylocks has the right, but not the obligation, to monitor any activity and content associated with this Site. Swaylocks may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site, including listings and bids. Swaylocks reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.

c. Disclosure of Information. Swaylocks also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect Swaylocks's systems and customers, or to ensure the integrity and operation of Swaylocks's business and systems, Swaylocks may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.

14. Privacy. Read the Swaylocks.com Privacy Notice. The Privacy Notice may be changed by us in the future. You should check the Privacy Notice frequently for changes. Unless otherwise authorized or consented, you agree not to use any information regarding other participants which is accessible from the Site or disclosed to you by Swaylocks or its affiliates, except to enter into and complete transactions. You agree not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, or otherwise objectionable conduct. Swaylocks and its affiliates may communicate with you in connection with your listings, sales, and the Services, electronically and in other media, and you consent to such communications regardless of any "Customer Communication Preferences" (or similar preferences or requests) you may have indicated on the Site or by any other means. Please note that when you sign up to sell items on the Site, some personally identifiable information about you, including your feedback and the e-mail address associated with your account, may be displayed on the Site and may be viewed by potential buyers.

15. No Warranties. THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. SWAYLOCKS.COM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:

a. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;

b. THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;

c. THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE AT THE TIME OF AUCTION OR FIXED PRICE SALE, LAWFUL TO SELL, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED;

d. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND

e. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SWAYLOCKS.COM.

TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SWAYLOCKS.COM DISCLAIMS ANY AND ALL SUCH WARRANTIES.

16. General Release. BECAUSE SWAYLOCKS.COM IS NOT INVOLVED IN TRANSACTIONS BETWEEN BUYERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF YOU RELEASE SWAYLOCKS.COM (AND ITS AGENTS 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.

17. Indemnity/Limitation of Liability.

a. Indemnity and Defense. You will defend, indemnify and hold harmless Swaylocks and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Participation Agreement; or (ii) your own website or other sales channels, the products you sell, any content you provide, the advertisement, offer, sale or return of any products you sell, any actual or alleged infringement of any intellectual property or proprietary rights by any products you sell or content you provide, or Seller Taxes or the collection, payment or failure to collect or pay Seller Taxes. For purposes hereof: "Claim" means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity; and "Seller Taxes" means any and all sales, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by you on or through the Swaylocks.com Site, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.

b. Limitation of Liability. SWAYLOCKS.COM WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PARTICIPATION AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.

18. Applicable Law. The Site and the Services are arranged, sponsored, or managed by Swaylocks in the state of California, USA. The laws of the state of Washington govern this Participation Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. You agree that any action at law or in equity arising out of or relating to these terms and conditions shall be submitted to confidential arbitration in an agreed upon location, except that, to the extent you have in any manner violated or threatened to violate Swaylocks's intellectual property rights, Swaylocks may seek injunctive or other appropriate relief in any state or federal court in the state of Nevada, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Participation Agreement shall be joined to an arbitration involving any other party subject to this Participation Agreement, whether through class arbitration proceedings or otherwise.

19. Disputes. Because Swaylocks is not involved in the actual transaction between Sellers and Buyers and is not the agent of either for any purpose, Swaylocks will not be involved in resolving any disputes between participants related to or arising out of any transaction. Swaylocks urges Sellers and Buyers to cooperate with each other to resolve such disputes.

20. Your Grant. By entering into this Participation Agreement and listing an item, you grant Swaylocks and its affiliates a nonexclusive, worldwide, royalty-free, irrevocable right to exercise all copyright, trademark rights, and rights of publicity over the content you submit to Swaylocks and its affiliates in any existing or future media, known or unknown, now or at any later date. You represent and warrant that you own or otherwise control all of the rights to the content you submit to Swaylocks and its affiliates, and that the use of such materials by Swaylocks and its affiliates will not infringe upon or violate the rights of any third party.

21. Termination. Swaylocks, in its sole discretion, may terminate this Participation Agreement, access to the Site or the Services, or any current auctions or fixed price sales immediately without notice for any reason.

22. General Provisions

a. Entire Agreement. This Participation Agreement and the general terms and conditions of the Site, including but not limited to the Privacy Notice and Conditions of Use, constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.

b. No Agency; Third-Party Beneficiary. Swaylocks is not the agent, fiduciary, trustee, or other representative of you. Nothing expressed or mentioned in or implied from this Participation Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Participation Agreement. This Participation Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Swaylocks, you, and relying Buyers or Sellers.

c. Severability. If any provision of this Participation Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.

d. No Waiver. We will not be considered to have waived any of our rights or remedies described in this Participation Agreement unless the waiver is in writing and signed by us. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Swaylocks's failure to enforce the strict performance of any provision of this Participation Agreement will not constitute a waiver of Swaylocks's right to subsequently enforce such provision or any other provisions of this Participation Agreement.