July 5, 2016

Terms & Conditions

Aplantment Pty Ltd t/as Crop Swap Sydney ABN 26 607 659 549 provides a closed Facebook group, Facebook page, arranges swap events and provides a website (Site) at www.cropswap.sydney (Services) for users who wish to swap homegrown and homemade produce and products, seeds, excess or second hand gardening goods, advice and recipes (Swaps). In general, money will not change hands for Swaps unless they have been preapproved by Crop Swap Sydney as being of sufficient value to warrant an additional cash payment as well as payment in kind.

  1. Contract
    (a) These Marketplace Terms and Conditions (Terms) form a binding legal agreement between Crop Swap Sydney, its directors, officers, employees, successors and assignees, and each person, organisation or entity using the Services (Users). By using the Services, each User agrees to comply with and be legally bound by these Terms and the Facebook terms of use. Please read the Terms carefully. If there are any questions, the User is encouraged to contact Crop Swap Sydney using the contact details at the end of these Terms.
    (b) The User’s use of the Services indicates that:

    (i) the User has had sufficient opportunity to access the Terms and contact Crop Swap Sydney.
    (ii) the User has read, accepted and will comply with the Terms;
    (iii) the User has legal capacity to enter into a contract for sale; and
    (iv) the User is 18 years or older or if younger than 18 years, the User has the approval of its parent or guardian.

    If this is not correct, or if the User does not agree to these Terms, the User is not permitted to use any of the Services.

    (c) These Terms may be amended from time to time, without prior notice. Use of our Services following any such amendments will be deemed to be confirmation that the User accepts those amendments.  Crop Swap Sydney recommends that each User check the current Terms, before continuing use of the Services. Crop Swap Sydney’s agents, employees and third parties do not have authority to change the Terms.

  1. Introductory Service Only
    (a) The Facebook group and swap events provide members a forum to barter and exchange homegrown and homemade produce and products, seeds, excess or second hand gardening goods, advice and recipes. The Facebook Page and Site contains content which may be useful for Users including gardening advice, recipes and suggested suppliers.
    (b) Each User understands and agrees that the Services are introductory only, and that Crop Swap Sydney’s responsibilities are limited to facilitating the availability of the Services.
    (c) Crop Swap Sydney is not a party to any agreement entered into between Users. Crop Swap Sydney is not a referrer or booking agent, and provides no such related services. Crop Swap Sydney has no control over the conduct of Users. Crop Swap Sydney disclaims all liability in this regard, as set out in these Terms.
    (d) Any contract, arrangement or understanding between Users is strictly between them and Crop Swap Sydney is not a party to it.
  1. Users and User Profiles
    (a) Users wanting to join the Facebook group will request to join the group and if accepted will be able to participate in the group as a User. All Users attending Crop Swap Sydney events or signing up for our newsletters will also be regarded as Users for the purposes of these Terms. There are no User fees payable for the Services.
    (b) Each User of the Facebook group acknowledges and agrees that there is no need to create an account or profile other than their Facebook profile.
    (c) Each User acknowledges and agrees that any communications entered into with another User is at his or her own risk. Crop Swap Sydney does not provide a User with and cannot guarantee that other Users have genuine intentions.
    (d) Each User should report to Crop Swap Sydney, any activities or requests of Users which are, or which the User reasonably believes to be:

    (i) suspicious;
    (ii) inconsistent;
    (iii) illegal; or
    (iv) likely to have a negative effect on the reputation of Crop Swap Sydney, the Services and/or a User.

    (e) Each User acknowledges and agrees that while the Facebook group allows Users to communicate with each other, Users are not permitted to share the contact information of other Users.
    (f) Each User represents and warrants that any content that it posts:

    (i) will not breach any agreements it has entered into with any third parties;
    (ii) will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any User in its local area and country; and

    (g) will not conflict with the rights of third parties.
    (h) For the avoidance of doubt, Crop Swap Sydney assumes no responsibility for a User’s compliance with any applicable laws, rules and regulations.
    (i) Crop Swap Sydney reserves the right, at any time and without prior notice, to remove content for any reason that Crop Swap Sydney, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services and in that event may also disable user access and/or ban a user from using the Services.

  1. Comments
    (a) Users may leave comments on website blogs and posts on the Site but they will be moderated by a website administrator before going live. Commenting and posting via the Facebook page and group is also permitted if content complies with these terms.
    (b) To the fullest extent permitted by law, Crop Swap Sydney is not responsible for the content of any comments or posts made by Users.
    (c) Users acknowledge and agree that they are not permitted to post posts or leave comments which contain foul language, illegal material, defamatory comments, business advertisements, spam, religious debates, comments which incite fear, and/or any form of abuse, insults or personal attacks.
  1. Delivery
    (a) The Users are to arrange delivery between them. Crop Swap Sydney is not involved in the delivery process.
  1. Offers and Promotions
    (a) Crop Swap Sydney may, from time to time, make offers or promotions which may be applicable to the Services.
    (b) The conditions of such offers or promotions will be specified on the Site or via social media.
    (c) The User acknowledges and agrees that Crop Swap Sydney may, at its sole discretion, remove or extend any offers or promotions, and Crop Swap Sydney will not be responsible or liable for any potential loss or damage which the User incurs as a result of the removal or extension of any offers or promotions.
  1. Dispute Resolution
    (a) Crop Swap Sydney welcomes feedback from its Users. Crop Swap Sydney seeks to resolve concerns quickly and effectively.  If any User has any feedback or questions about the Services, please contact any member of the staff.
    (b) If there are any complaints from a User, Crop Swap Sydney will aim to respond and provide a suitable solution within 30 days. If a User is not satisfied with Crop Swap Sydney’s response, the User and Crop Swap Sydney agree to the following dispute resolution procedure:

    (i) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.  The User and Crop Swap Sydney agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
    (ii) If a resolution cannot be agreed upon at the Initial Meeting, either the User or Crop Swap Sydney may refer the matter to a mediator.  If the User and Crop Swap Sydney cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator.  The mediator will decide the time and place for mediation.  Each party to the dispute must attend the mediation in good faith, to seek to resolve the dispute.

    (c) Any attempts made by a party to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of either party under these Terms, by law or in equity.

  1. Intellectual Property
    (a) All logos, slogans, content, designs, diagrams, drawings, graphics, images, layouts, appearance, videos, ideas, methods, databases, codes, algorithms, software, fees, pricing, notes, documents, domain names, confidential information, copyright, rights in circuit layouts (or similar rights), registered or unregistered trade marks, trade names, patent, know-how, trade secrets and any other intellectual or industrial property whether such rights are capable of being registered or not (collectively Intellectual Property), including but not limited to copyright which subsists in all creative and literary works displayed on the Site, Facebook group and Facebook page and the layout, appearance and look of the Site and the Facebook group and Facebook page together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world, whether created before or after the date of these Terms is controlled by or licensed to Crop Swap Sydney.
    (b) The User agrees that, as between the User and Crop Swap Sydney, Crop Swap Sydney owns or holds the relevant licences to all such Intellectual Property and that nothing in these Terms constitutes a transfer of any Intellectual Property.
    (c) Some Intellectual Property used in connection with the Services are the trademarks of their respective owners (collectively Third Party Marks).
    (d) Crop Swap Sydney’s Intellectual Property and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Crop Swap Sydney or the applicable trademark holder or Intellectual Property owner.
    (e) Users of the Services do not obtain any interest or licence in the Intellectual Property or Third Party Marks without the prior written permission of Crop Swap Sydney or the applicable Intellectual Property owner. Users may not do anything which interferes with or breaches the Intellectual Property rights.
  1. Permitted and Prohibited Conduct
    (a) The User is solely responsible for compliance with any and all laws, rules, regulations, including but not limited to tax obligations that may apply to its use of the Services. In connection with the User’s use of the Services, the User may not and agrees that it will not:

    (i) use the Services for any commercial or other purposes that are not expressly permitted by these Terms;
    (ii) post anything that is offensive, threatening or vulgar, contains nudity or inappropriate language, contains or promotes harmful activities or substances, violence, racial or religious ranting or discrimination or denigrates or defames Crop Swap Sydney or another User;
    (iii) submit any false or misleading information;
    (iv) offer Swaps that it does not intend to honour or cannot provide;
    (v) violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
    (vi) copy, store or otherwise access any information contained on the Services or content for purposes not expressly permitted by these Terms;
    (vii) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
    (viii) use the Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
    (ix) use the Services in connection with the distribution of unsolicited commercial email, i.e. spam or advertisements;
    (x) stalk or harass any other User of the Services or collect or store any personally identifiable information about any other User other than for purposes of transacting as a User;
    (xi) use, display, mirror or frame the Site, Facebook group or Facebook page, or any individual element within the Services, Crop Swap Sydney’s name, any Crop Swap Sydney trademark, logo or other Intellectual Property, information, or the layout and design of any page or form contained on a page, without Crop Swap Sydney’s express written consent; or
    (xii) advocate, encourage, or assist any third party in doing any of the foregoing.

  1. User Content
    (a) Users are permitted to post on the Site, Facebook group or Facebook page and comment on blog posts (User Content). By making available any User Content or any Intellectual Property on or through the Site and Services, the User grants to Crop Swap Sydney a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content and Intellectual Property, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content and Intellectual Property on, through, or by means of the Services.
    (b) The User agrees that it is solely responsible for all User Content and Intellectual Property that it makes available through the Services. The User represents and warrants that:

    (i) it is either the sole and exclusive owner of all User Content and Intellectual Property that it makes available through the Services, or that it has all rights, licences, consents and releases that are necessary to grant to Crop Swap Sydney the rights in such User Content or Intellectual Property, as contemplated under these Terms; and
    (ii) neither the User Content nor the posting, uploading, publication, submission or transmittal of the User Content or Crop Swap Sydney’s use of the User Content (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

    (c) Crop Swap Sydney may at its sole discretion remove any User Content that is offensive or in breach of these Terms.

  1. Disclaimers and exclusion of liability
    (a) Crop Swap Sydney does not guarantee that Swaps will eventuate.
    (b) Crop Swap Sydney does not endorse any proposed Swaps. Crop Swap Sydney does not perform any sort of background checks of Users, and does not confirm any User’s identity or offers.
    (c) Crop Swap Sydney cannot and does not control the content contained in any content uploaded by Users. Users wishing to deal with other Users who have posted such content are responsible for determining the existence and suitability of Swaps.
    (d) Crop Swap Sydney accepts no responsibility for and makes no representations or warranties to the User or to any other person or entity as to the reliability, accuracy or completeness of the information contained on the Site, Facebook group or Facebook page. Crop Swap Sydney disclaims any and all liability related to any and all Swaps.
    (e) Crop Swap Sydney recommends all Users verify the identification of the User they wish to transact a Swap with prior to transacting the Swap.
    (f) By using the Services, every User agrees that any legal remedy or liability that it seeks to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the other User or other third party who caused that User harm. Crop Swap Sydney encourages the User to communicate directly with the other User or third party to resolve any dispute between them.
    (g) To the fullest extent allowable under applicable law, Crop Swap Sydney disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Services are merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors.
    (h) For the avoidance of doubt, Crop Swap Sydney is not responsible for any duties, fees, or taxation matters associated under these Terms. Crop Swap Sydney advises that all Users using the Services should seek advice in relation to these matters.
    (i) Each User who uses the Services does so at their own risk.
    (j) Crop Swap Sydney expressly excludes all express and implied conditions and warranties to the fullest extent permitted by law, including but not limited to:

    (i) any implied or express guarantees, warranties, representations or conditions of any kind which are not stated in these Terms;
    (ii) any warranty that the Services, content or the User’s access to the Services will be error free, that any defects will be corrected or that the server which stores and transmits material to the User is free of viruses or any other harmful components; or
    (iii) the Services, or Swaps being unavailable, of a particular standard of quality freshness or workmanship, failing to meet their description, failing to meet the User’s needs, or being of less than merchantable or acceptable quality.

    (k) Crop Swap Sydney will not be liable for any losses, damages, costs or expenses whether direct, indirect, incidental, special, consequential and/or incidental, exemplary or consequential, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal, bodily injury, death or emotional distress, loss of revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on the User’s information systems or costs of replacement goods, or otherwise, suffered by the User or any third parties, or claims made against the User, arising out of or in connection with Swaps, the Services, content on the Site, Facebook group or Facebook page, inability to access or use the Services or the Terms, even if Crop Swap Sydney was expressly advised of the likelihood of such loss or damage. In particular, Crop Swap Sydney is not responsible or liable for any accident, injury, sickness or allergy affecting any person whatsoever that may result from the use or consumption of Swaps.
    (l) The User agrees not to attempt to impose liability on, or seek any legal remedy from Crop Swap Sydney with respect to such actions or omissions.

  1. Limitation of liability
    (a) To the extent permitted by law, Crop Swap Sydney’s total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed one hundred dollars (AUD$100).
    (b) The limitation of damages set forth above is a fundamental element of the basis of the bargain between Crop Swap Sydney and the Users in allowing them to use the Services.
    (c) This limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any exclusion of liability specified in these terms is found to be not enforceable.
  1. Indemnity
    (a) Each User agrees to defend and indemnify and hold Crop Swap Sydney (and Crop Swap Sydney’s parent, related bodies corporate, officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to the User’s use of or access to the Services; any breach by the User of these Terms; any wilful, unlawful or negligent act or omission by the User; and any violation by the User of any applicable laws or the rights of any third party.
    (b) Crop Swap Sydney reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.
    (c) This defence and indemnification obligation will survive these Terms and the User’s use of the Services. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by the User, but may be assigned by Crop Swap Sydney without restriction.
  1. General
    (a) Accuracy: While Crop Swap Sydney will endeavour to keep the information up to date and correct, Crop Swap Sydney makes no representations, warranties or guarantees, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site, Facebook group or Facebook page. The User hereby acknowledges that such information and materials may contain mistakes, inaccuracies or errors and Crop Swap Sydney expressly excludes any liability for such to the fullest extent permissible by law.
    (b) Termination: Crop Swap Sydney reserves the right to refuse supply of the Services required by any User, suspend or remove a User from mailing lists and the Facebook group, and remove or edit content on the Site, Facebook group or Facebook page at its sole discretion, without incurring any liability to the User. The User will not be entitled to any compensation for Swaps that were cancelled as a result.
    (c) Fraudulent Activities: Each User acknowledges and agrees that, in the event Crop Swap Sydney reasonably suspects that there are fraudulent activities occurring, Crop Swap Sydney reserves the right to contact the relevant authorities and provide all necessary information to assist in proceedings and investigations.
    (d) Force Majeure: Crop Swap Sydney will not be liable for any delay or failure to perform its obligations under the Terms if such delay is due to any circumstance beyond its reasonable control.
    (e) Notice: Any notice in connection with the Terms will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
    (f) Waiver: Any failure by a party to insist upon strict performance by the other of any provision in the Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by Crop Swap Sydney of any of the Terms shall be effective unless Crop Swap Sydney expressly states that it is a waiver and Crop Swap Sydney communicates it to the User in writing.
    (g) Assignment: A User must not assign any rights and obligations under the Terms whether in whole or in part without Crop Swap Sydney’s prior written consent.
    (h) Severability: If any of the Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
    (i) Jurisdiction and applicable law: These Terms, use of the Services and any dispute arising out of any User’s use of the Services is subject to the laws of New South Wales, Australia, and subject to the exclusive jurisdiction of the New South Wales courts. Crop Swap Sydney makes no representation that the Services comply with the laws (including intellectual property laws) of any country outside Australia. If a User accesses the Site, Facebook group or Facebook page from outside Australia, it does so at its own risk and is responsible for complying with the laws in the place where he/she accesses the Site, Facebook group or Facebook page.
    (j) Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between Crop Swap Sydney and each User, and supersede any prior agreement, understanding or arrangement between Crop Swap Sydney and each User, whether oral or in writing.

For questions and notices, please contact:
Aplantment Pty Ltd t/as Crop Swap Sydney ABN 26 607 659 549
PO Box 1144 Lane Cove NSW 1595
hello@cropswap.sydney

Last updated: 21 December 2016
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited.