User Agreement
1. Introduction
This User Agreement, and all policies and additional terms posted on and in our
sites set out the terms on which Airshopper Pty Ltd (“Airshopper”) offers you
access to and use of our Services.
You can find our policies and guidance here. All policies and additional terms
posted on and in our sites, applications, tools, and services are incorporated
into this User Agreement. You agree to comply with all of the terms of this
User Agreement when accessing or using our Services.
The entity you are contracting with is: Airshopper Pty Ltd with the ABN of 33
625 197 631 and address of 153 Waverley Rd, Chadstone, VIC 3148.
Please be advised that this User Agreement contains provisions that govern how
claims you and we have against each other are resolved. It also contains an
Agreement to Arbitrate, which will, with limited exception, require you to
submit claims you have against us or our agents to binding and final
arbitration, unless you opt-out of the Agreement to Arbitrate. Unless you opt
out: (1) you will only be permitted to pursue claims against us or our agents
on an individual basis, not as a plaintiff or class member in any class or
representative action or proceeding and (2) you will only be permitted to seek
relief (including monetary, injunctive, and declaratory relief) on an
individual basis.
2. About Airshopper
Airshopper is a marketplace that allows users to offer, sell and buy just about
anything in a variety of pricing formats and locations. The actual contract for
sale is directly between the seller and buyer. Airshopper is not a traditional
auctioneer.
While we may provide pricing, shipping, listing, sourcing, and other guidance
in our Services, such guidance is solely informational, and you may decide to
follow it or not. Also, while we may help facilitate the resolution of disputes
through various programs, Airshopper has no control over and does not
guarantee: the existence, quality, safety or legality of items advertised; the
truth or accuracy of users' content or listings; the ability of sellers to sell
items; the ability of buyers to pay for items; or that a buyer or seller will
actually complete a transaction or return an item. You must ensure that you
comply with your obligations to that other member and are aware of any laws
relevant to you as a buyer or seller. If another member breaches any obligation
to you, you – not Airshopper – are responsible for enforcing any rights that
you may have. You alone, and not Airshopper, are responsible for ensuring that
your listing, bidding and selling and any other activities conducted on our
site are lawful. You must ensure that you comply with all applicable laws in
Australia and other countries. You must also ensure that you strictly comply
with this Agreement and the policies which form part of the Agreement.
Before using the Airshopper services, you must read and accept all of the terms
in, and linked to, this User Agreement ("Agreement") and the
Airshopper User Privacy
Policy. We strongly recommend that, as you read this User Agreement, you
also access and read all related docs and terms on our website. By accepting
this User Agreement, you agree that this User Agreement and User Privacy Policy
will apply whenever you use the Airshopper services, or when you use the tools
we make available to interact with the Airshopper services.
3. Using Airshopper
A. Transaction
In connection with using or accessing the Services you will not:
• post, list or upload content or items in inappropriate categories or areas on
our sites;
• breach or circumvent any laws, third-party rights or our systems, policies,
or determinations, such as the prohibited and restricted item policies;
• use our Services if you are not able to form legally binding contracts (for
example, if you are under 18 years old), or are temporarily or indefinitely
suspended from using our sites, services, applications or tools;
• fail to pay for items purchased by you, unless you have a valid reason as set
out in an Airshopper policy, for example, the seller has materially changed the
item's description after you bid, a clear typographical error is made, or you
cannot contact the seller and authenticate the seller's identity (see our
Unpaid item policy);
• fail to deliver items sold by you, unless you have a valid reason as set out
in an Airshopper policy, for example, the buyer fails to comply with the posted
terms in your listing or you cannot contact the buyer and authenticate the
buyer's entity;
• manipulate the price of any item or interfere with any other user's listings;
• post false, inaccurate, misleading, deceptive, defamatory, or libellous
content;
• take any action that may undermine the feedback or ratings systems (such as
displaying, importing or exporting Feedback information or using it for
purposes unrelated to Airshopper);
• transfer your Airshopper account (including Feedback) and user ID to another
party without our consent;
• distribute or post spam, unsolicited or bulk electronic communications, chain
letters, or pyramid schemes;
• distribute viruses or any other technologies that may harm Airshopper or the
interests or property of users;
• use any robot, spider, scraper, data mining tools, data gathering and
extraction tools, or other automated means to access our Services for any
purpose, except with the prior express permission of Airshopper;
• interfere with the working of our Services, or impose an unreasonable or
disproportionately large load on our infrastructure;
• export or re-export any Airshopper application or tool, except in compliance
with the export control laws of any relevant jurisdictions and in accordance
with posted rules and restrictions;
• infringe the copyright, trademark, patent, publicity, moral, database, and/or
other intellectual property rights (collectively, "Intellectual Property
Rights") that belong to or are licensed to Airshopper. Some, but not all,
actions that may constitute infringement are reproducing, performing,
displaying, distributing, copying, reverse engineering, decompiling,
disassembling, or preparing derivative works from content that belongs to
Airshopper or someone else;
• infringe any Intellectual Property Rights that belong to third parties
affected by your use of the Services or post content that does not belong to
you;
• commercialize any Airshopper application or any information or software
associated with such application, except with the prior express permission of
Airshopper;
• harvest or otherwise collect information about users without their consent;
or
• circumvent any technical measures we use to provide the Services.
Without limiting other remedies, we may limit, suspend or terminate our service
and user accounts, prohibit access to the Airshopper services, delay or remove
hosted content, remove, delete, modify or not display listings, apply fees
and/or recover our expenses for policy monitoring and enforcement, and/or take
technical and legal steps to keep users off the sites if we think that they are
creating problems or possible legal liabilities, infringing the intellectual
property rights of third parties or acting inconsistently with the letter or
spirit of our policies (for example, and without limitation, policies related
to shill bidding, conducting off-Airshopper transactions, Feedback
manipulation, circumventing temporary or permanent suspensions or users who we
believe are harassing our employees or other users). Additionally, we may, in
appropriate circumstances and at our reasonable discretion, suspend or
terminate accounts of users who may be repeat infringers of intellectual property
rights of third parties. We also reserve the right to cancel unconfirmed
accounts or accounts that have been inactive for a long time, or to modify or
discontinue Airshopper services.
If we believe you are violating the policy on Offers to buy or sell outside of
Airshopper, you may be subject to a range of actions, including limits on your
buying and selling privileges, restrictions on listings and account features,
suspension of your account, application of fees, and recovery of expenses for
policy monitoring and enforcement. If you are a seller and you offer or
reference your contact information or ask a buyer for their contact information
in the context of buying or selling outside of Airshopper, you may be liable to
pay a final value fee applicable to that item, even if the item does not sell.
B. Account Obligation
In consideration of your use of the Airshopper, you agree to provide true,
accurate, current and complete information about yourself as prompted by the
Registration and Identity Verification and maintain and promptly update the
Registration Information to keep it true, accurate, current and complete.
If you provide any information that is untrue, inaccurate, not current or
incomplete, or we have reasonable grounds to suspect that such information is
untrue, inaccurate, not current or incomplete, or we cannot verify or
authenticate any information you provided to us, or we reasonably believe that
any of your information (which includes an item listed on the site) is
inappropriate or of an offensive nature, we may suspend or terminate your
registration and refuse any and all current and future use of the Site.
You are responsible for maintaining the confidentiality of your password and
registration and are fully responsible for all activities that occur under your
password and registration. You agree to immediately notify us of any
unauthorized use of your password or account or any other breach of security.
Airshopper consider this information private. The information is kept on a
secure server to protect it from outside parties. We use the information only
for the limited purposes of processing your orders, for statistical purposes to
improve our site and services to you, to administer our site, and to notify you
of products or special offers that may be of interest to you.
We may cancel unconfirmed accounts or accounts that have been inactive for a
long time or modify or discontinue our Services. Additionally, we reserve the
right to refuse or terminate all or part of our Services to anyone for any
reason at our discretion.
For security, confidentiality and privacy reasons, we are not obligated to
provide you or other members the details of any investigation that we conduct
or any action which we take, in relation to your membership or your account
other than those that are already provided to you by us.
C. Payment Method
Airshopper partnered the affiliates or third-party payment agents who deal
with deposit, transfer, withdraw and foreign exchange according to their own
business spectrum and licence to process the payments and fund escrow. Specific
payment method and surcharge information is under our Payment method policy.
According to the method we taking in payment, the user may need to deposit the
fund in Airshopper first, we strongly recommend all users only deposit the fund
of the amount just sufficient to pay the orders. We may contact you to withdraw
the balance in your account if the balance has been dormant for a while,
otherwise, we may deduct fee on it.
4. Policy Enforcement
When a buyer or seller issue arises, we may consider the user's performance
history and the specific circumstances in applying our policies. We may choose
to be more lenient with policy enforcement in an effort to do the right thing
for both buyers and sellers.
5. Fees
The fees we charge for using our Services are listed on our Standard selling fees
page. We may change our seller fees from time to time by posting the changes on
the Airshopper site 14 days in advance, but with no advance notice required for
temporary promotions or any changes that result in the reduction of fees.
If you are a seller, you are liable for transaction fees arising out of all
sales made using some or all Airshopper Services, even if sales terms are
finalized or payment is made outside of Airshopper. In particular, if you offer
or reference your contact information or ask a buyer for their contact
information in the context of buying or selling outside of Airshopper, you may
be liable to pay a final value fee applicable to that item, even if the item
doesn't sell, given your usage of Airshopper Services for the introduction to a
buyer.
Unless otherwise stated, all fees are quoted in Australian Dollars. You must
pay the service fee as well as applicable tax when selling through Airshopper
Services, though the fee collection might be varied with types by the due date.
If your payment fails, we may collect amounts owed by charging other payment
methods on file with us, retain collection agencies and legal counsel. In
addition, you will be subject to late fees. Airshopper, or the collection
agencies we retain, may also report information about your account to credit
bureaus, and as a result, late payments, missed payments, or other defaults on
your account may be reflected in your credit report. If you wish to dispute the
information Airshopper reported to a credit bureau (i.e., Experian, Equifax or
TransUnion) please contact us on the contacts in the website.
Seller fees don't purchase exclusive rights to item exposure on Airshopper, whether
on a web page, mobile app, or otherwise. We may, in our sole discretion and
without consent from, or payment, fee reduction, or other credit to, sellers,
display third-party advertisements (including links and references thereto) or
other content in any part of our Services.
6. Listing Conditions
When listing an item, you agree to comply with Airshopper's Listing policies and Selling practices policy
and:
• You are responsible for keeping the information of the listing and item
accurate, current and complete
• Your listing may not be immediately searchable by keyword or category for
several hours (or up to 24 hours in some circumstances). Airshopper can't
guarantee exact listing durations
• Content that violates any of Airshopper's policies may be modified,
obfuscated or deleted at Airshopper's discretion
• We may revise product data associated with listings to supplement, remove, or
correct information
• We strive to create a marketplace where buyers find what they are looking
for. Therefore, the appearance or placement of listings in search and browse
results will depend on a variety of factors, including, but not limited to: (i)
buyer's location, search query, browsing site, and history; (ii) item's
location, listing format, price and shipping cost, terms of service, end time,
history, and relevance to the user query; (iii) seller's history, including
listing practices, detailed seller ratings, Airshopper policy compliance,
feedback, and defect rate; and (iv) number of listings matching the buyer's query
• To drive a positive user experience, a listing may not appear in some search
and browse results regardless of the sort order chosen by the buyer
• Airshopper's Duplicate
listings Policy may also affect whether your listing appears in search
results
• Metatags and URL links that are included in a listing may be removed or
altered so as to not affect third-party search engine results
• We may provide you with optional recommendations to consider when creating
your listings. Such recommendations may be based on the aggregated sales and
performance history of similar sold and current listings; results will vary for
individual listings. To drive the recommendations experience, you agree that we
may display the sales and performance history of your individual listings to
those of other sellers.
7. Purchase Conditions
When buying an item, you agree to the Rules and policies for buyers and that:
• You are responsible for reading the full item listing before making a bid or
commitment to buy
• You enter into a legally binding contract to purchase an item when you commit
to buy an item, your offer for an item is accepted, or if you have the winning
bid (or your bid is otherwise accepted)
• For motor vehicles and real estate, a bid or offer initiates a non-binding
transaction representing a buyer's serious expression of interest in buying the
seller's item and does not create a formal contract between the buyer and the
seller
• We do not transfer legal ownership of items from the seller to the buyer
8. International Buying and Selling; Translation
Many of our Services are accessible to international sellers and
buyers. We may offer certain programs, tools, and site experiences of
particular interest to international sellers and buyers. Sellers and buyers are
responsible for complying with all laws and regulations applicable to the
international sale, purchase, and shipment of items.
9. Content
When providing content using our services (directly or indirectly), you grant
us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free,
sublicensable (through multiple tiers) right to exercise any and all
Intellectual Property Rights (as defined above) you have in that content in
connection with our provision, expansion, and promotion of the Services, in any
media known now or developed in the future. To the fullest extent permitted
under applicable law, you waive your right to enforce against Airshopper, our
assignees, our sublicensees, and their assignees your Intellectual Property
Rights in that content in connection with our, those assignees', and those
sublicensees' use of that content in connection with our provision, expansion,
and promotion of the Services, which includes:
• disclosing, reproducing, copying, adapting, publishing, performing,
exhibiting, communicating, renting, transmitting or otherwise using the content
(and any adaptation or part of the content) anywhere in the world: (i) in
whatever form and in whatever circumstances Airshopper and the Airshopper
Authorised Persons think fit, including adding to or otherwise altering the
content (or any adaptation or part of the content); and (ii) without making any
identification of you as the author in relation to the content (or any
adaptation or part of the content); and
• doing anything or omitting to do anything in relation to the content (or any
adaptation or part of the content) anywhere in the world that would otherwise
infringe the moral rights, or any similar non-assignable, personal rights, that
you might have.
You represent and warrant that, for all such content you provide, you own or
otherwise control all necessary rights to do so and to meet your obligations
under this User Agreement. You represent and warrant that such content is
accurate. You represent and warrant that use of any such content (including
derivative works) by us, our users, or others in contract with us, and in
compliance with this User Agreement, does not and will not infringe any
Intellectual Property Rights of any third party. Airshopper takes no
responsibility and assumes no liability for any content provided by you or any
third party.
We offer product data (including images, descriptions and specifications) that
are provided by third parties (including Airshopper users). You may use that
content solely in your Airshopper listings. Airshopper may modify or revoke
that permission at any time in our sole discretion. The product data includes
copyrighted, trademarked and other proprietary materials. You agree not to
remove any copyright, proprietary, or identification markings in the product
data and not to create any derivative works based on that data (other than by
including the data in your listings).
We try to offer reliable product data but cannot promise that the content
provided through the Services will always be available, accurate, complete, and
up-to-date. You agree that Airshopper is not responsible for examining or
warranting the listings or content provided by third parties through the
Services, and that you will not attempt to hold us or our data providers liable
for inaccuracies. As a seller, you agree to ensure that content directly
associated with your listings is accurate, do not include misleading
information and comply with this User Agreement and all Airshopper policies.
The name "Airshopper" or “Air-shopper” and other Airshopper marks,
logos, designs, and phrases that we use in connection with our Services are
trademarks, service marks, or trade dress of Airshopper in the Australia and
other countries. They may not be used without the express written prior
permission of Airshopper.
10. Notice for Claims of Intellectual Property Violations and Copyright
Infringement
We respond to notices of alleged copyright infringement under the relevant laws
in Australia. Airshopper tries best to not infringe upon the copyright,
trademark, or certain other intellectual property rights of third parties. If
you believe that your intellectual property rights have been infringed, please
notify us.
11. Holds
To protect Airshopper from risk of liability for your actions as a
seller or buyer, Airshopper might be recommended by the third service
providers, or on its own discretions, to restrict access to funds in a seller's
account based on certain factors, including, but not limited to, transaction
history, seller performance, returns, riskiness of the listing category,
transaction value, or the filing of a fraud case. This may result in Airshopper restricting funds in
your account with Airshopper or other third service providers.
12. Authorization to Contact You; Recording Calls; Analyzing Message Content
Airshopper may contact you using autodialed or prerecorded calls and text
messages, at any telephone number or other contact methods that you have
provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems
with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your
opinions through surveys or questionnaires; or (vi) as otherwise necessary to
service your account or enforce this User Agreement, our policies, applicable
law, or any other agreement we may have with you.
Airshopper may also contact you using autodialed, prerecorded calls or other
methods for marketing purposes (e.g., offers and promotions), if you consent to
such communications. Our collection, use, disclosure, retention, and protection
of your personal information is governed by the User Privacy Policy. As
described in our User Privacy Policy, Airshopper may collect other telephone
numbers or contacting method to contact you for non-marketing affairs. Standard
telephone minute and text charges may apply and may include overage fees if you
have exceeded your plan limits.
Airshopper may share your contact methods with its authorized service providers
as stated in our User Privacy Policy. These service providers may contact you
using autodialed or prerecorded calls and text messages, only as authorized by
Airshopper to carry out the purposes identified above.
Airshopper may, without further notice or warning and in its discretion,
monitor or record communications you or anyone acting on your behalf has with
Airshopper or its agents for quality control and training purposes, or for its
own protection.
Airshopper may analyze the contents of every message sent through its messages
platform, including messages between users, to detect and prevent fraudulent
activity or violations of Airshopper's User Agreement, including the
incorporated terms, notices, rules, and policies. This scanning and analysis
may occur before, during, or after the message is sent, or while in storage,
and may result in your message being delayed or withheld. Airshopper may store
message contents, including to conduct this scanning and analysis.
If Airshopper provides you with information about another user, you agree you
will use the information only for the purposes that it is provided to you. You
may not disclose, sell, rent, or distribute a user's information to a third
party for purposes unrelated to the Services. Additionally, you may not use
information for marketing purposes, via electronic or other means, unless you
obtain the consent of the specific user to do so.
13. Additional Terms
A.Returns and Cancellations
You agree to comply with our returns and cancellation policy. Sellers
should respond to every replacement, returns and refunds. When the refund is
initiated before Airshopper clear the fund to the sellers, sellers’ approval on
the return or refund, or a cancellation of orders before goods or services are
delivered would authorize Airshopper to remove the refund amount from seller
account. However, all returns and refunds requested after Airshopper’s fund
clearance would be dealt by the buyers and sellers themselves.
The cost of return shipping for an item is upon the negotiation between buyers
and sellers. Users (buyers or sellers) agree that fee charged by Airshopper is
not cancellable and refundable. However, to improve the users experience,
Airshopper may return the fee on courtesy and kindness.
B.Global Shipping
For eligible items located in the countries but purchased by an
international buyer of another one, Buyers could purchase the freight
forwarding service listed on Airshopper by other service supplier (also a
seller). The freight forwarding or delivering service are also subject to
applicable laws, policies, rules of Airshopper like other listed item or
services.
For all personally identifiable information you (Buyers) disclose to the
freight forwarder, Airshopper does not control the privacy policies of these
service providers and their affiliates, or its service providers, and you are
subject to the privacy policies of those parties, as applicable.
C. Disputes resolution
Most Airshopper sales go smoothly, but if there's a problem with a
purchase, Airshopper would help buyers and sellers communicate and resolve
issues. You agree to comply with the policy and permit us to make a final
decision on any case.
14. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we
cannot guarantee the continuous operation of or access to our Services. Bid
update and other notification functionality in Airshopper's applications may
not occur in real time. Such functionality is subject to delays beyond
Airshopper's control.
You agree that you are making use of our Services at your own risk, and that
they are being provided to you on an "AS IS" and "AS
AVAILABLE" basis. Accordingly, to the extent permitted by applicable law,
we exclude all express or implied warranties, terms and conditions including,
but not limited to, implied warranties of merchantability, fitness for a
particular purpose, and non-infringement.
While we strive to maintain a safe trading environment you accept that there
are unfortunately sometimes risks when trading online and using our sites,
including dealing with underage or fraudulent persons. You will not hold
Airshopper responsible for other users' content, actions or inactions, items
they list or their destruction of allegedly fake items. You acknowledge that we
are not an auctioneer. Instead, our sites are venues to allow anyone to offer,
sell, and buy just about anything, at any time, from anywhere, in a variety of
pricing formats and locations, such as Stores, fixed price formats and
auction-style formats. We are not involved in the actual transaction between
buyers and sellers. We have no control over and do not guarantee the quality,
safety or legality of items advertised, the truth or accuracy of users' content
or listings, the ability of sellers to sell items, the ability of buyers to pay
for items or that a buyer or seller will actually complete a transaction or
return an item.
In addition, to the extent permitted by applicable law, we (including our
parent, subsidiaries, and affiliates, and our and their officers, directors,
agents and employees) are not liable, and you agree not to hold us responsible,
for any damages or losses (including, but not limited to, loss of money,
goodwill or reputation, profits, other intangible losses, or any special,
indirect, or consequential damages) resulting directly or indirectly from:
• the content you provide (directly or indirectly) using the Services;
• your use of or your inability to use our Services;
• pricing, shipping, format, or other guidance provided by Airshopper;
• delays or disruptions in our Services;
• viruses or other malicious software obtained by accessing or linking to our
Services;
• glitches, bugs, errors, or inaccuracies of any kind in our Services;
• damage to your hardware device from the use of any Airshopper Service;
• the content, actions, or inactions of third parties, including items listed
using our Services or the destruction of allegedly fake items;
• a suspension or other action taken with respect to your account or breach of
the Abusing Airshopper Section above;
• the duration or manner in which your listings appear in search results as set
out in the Listing Conditions Section above; or
• your need to modify practices, content, or behavior, or your loss of or
inability to do business, as a result of changes to this User Agreement or our
policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of
damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our
liability to you or to any third party is limited to the greater of (a) any
amounts due up to the price the item sold for on Airshopper, and (b) the amount
of fees in dispute capped at the total amount you paid to us in the 12 months
prior to the action giving rise to the liability, or (c) $100 Australian
Dollar.
15. Release
If you have a dispute with one or more users, you release us (and our
affiliates and subsidiaries, and our and their respective officers, directors,
employees and agents) from claims, demands and damages (actual and
consequential) of every kind and nature, known and unknown, arising out of or
in any way connected with such disputes. In entering into this release you
expressly waive any protections (whether statutory or otherwise) that would
otherwise limit the coverage of this release to include only those claims which
you may know or suspect to exist in your favor at the time of agreeing to this
release.
16. Indemnity
You will indemnify and hold us (including our affiliates and subsidiaries,
as well as our and their respective officers, directors, employees, agents)
harmless from any claim or demand, including reasonable legal fees, made by any
third party due to or arising out of your breach of this User Agreement, your
improper use of Airshopper's Services or your breach of any law or the rights
of a third party.
17. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A
SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND AIRSHOPPER HAVE AGAINST EACH OTHER ARE
RESOLVED.
You and Airshopper agree that any claim or dispute at law or equity that has
arisen, or may arise, between you and Airshopper (including any claim or
dispute between you and a third-party agent of Airshopper) that relates in any
way to or arises out of this or previous versions of this User Agreement, your
use of or access to the Services, the actions of Airshopper or its agents, or
any products or services sold or purchased through the Services, will be
resolved in accordance with the provisions set forth in this Legal Disputes
Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by
Commonwealth law, the laws of the Victoria, without regard to principles of
conflict of laws, will govern this User Agreement and any claim or dispute that
has arisen or may arise between you and Airshopper, except as otherwise stated
in this User Agreement.
B. Agreement to Arbitrate
You and Airshopper each agree that any and all disputes or claims that have
arisen, or may arise, between you and Airshopper (including any disputes or
claims between you and a third-party agent of Airshopper) that relate in any
way to or arise out of this or previous versions of the User Agreement, your
use of or access to the Services, the actions of Airshopper or its agents, or
any products or services sold, offered, or purchased through the Services shall
be resolved exclusively through final and binding arbitration, rather than in
court. The Commercial Arbitration Acts 2011 (Vic) governs the interpretation
and enforcement of this Agreement to Arbitrate.
• Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND AIRSHOPPER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER
ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR
PROCEEDING. UNLESS BOTH YOU AND AIRSHOPPER AGREE OTHERWISE, THE ARBITRATOR MAY
NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT
OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR
PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD
RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR
OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO
PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF
AWARDED CANNOT AFFECT OTHER USERS. IF A COURT DECIDES THAT APPLICABLE LAW
PRECLUDES ENFORCEMENT OF ANY OF THIS PARAGRAPH’S LIMITATION AS TO A PARTICULAR
CLAIM FOR RELIEF, THEN THAT CLAIM ( AND ONLY THAT CLAIM) MUST BE SEVERED FROM
THE ARBITRATION AND MAY BE BROUGHT IN COURT, SUBJECT TO YOUR AND
ARISHOPPER’S RIGHT TO APPEAL THE COURT’S DECISION. ALL OTHER CLAIMS WILL BE
ARTIBTRAITED.
• Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a
neutral arbitrator instead of a judge or jury, and court review of an
arbitration award is very limited. However, an arbitrator can award the same
damages and relief on an individual basis that a court can award to an
individual. An arbitrator should apply the terms of the User Agreement as a
court would. All issues are for the arbitrator to decide, except that issues
relating to arbitrability, the scope or enforceability of this Agreement to
Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate
("Prohibition of Class and Representative Actions and Non-Individualized
Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the Arbitrator decided by Airshopper. The
use of the word "arbitrator" in this provision shall not be construed
to prohibit more than one arbitrator from presiding over an arbitration;
rather, the rules of the Arbitrator will govern the number of arbitrators that
may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by
certified mail, a completed form Notice of Dispute ("Notice").
Airshopper will send any Notice to you to the physical address we have on file
associated with your Airshopper account; it is your responsibility to keep your
physical address up to date. All information called for in the Notice must be
provided, including a description of the nature and basis of the claims the
party is asserting and the relief sought. Any settlement offer made by you or
Airshopper shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the State in which Airshopper resides
or at another mutually agreed location. If the value of the relief sought is
$1,000 or less, you or Airshopper may elect to have the arbitration conducted
by telephone or based solely on written submissions, which election shall be
binding on you and Airshopper subject to the arbitrator's discretion to require
an in-person hearing, if the circumstances warrant. In cases where an in-person
hearing is held, you and/or Airshopper may attend by telephone, unless the
arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with
applicable law, including recognized principles of equity, and will honor all
claims of privilege recognized by law. The arbitrator shall not be bound by
rulings in prior arbitrations involving different users but is bound by rulings
in prior arbitrations involving the same Airshopper user to the extent required
by applicable law. The arbitrator's award shall be final and binding and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof.
• Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by
the Arbitrator's rules unless otherwise stated in this Agreement to Arbitrate.
Any request for payment of fees by Airshopper should be submitted by mail to
the Arbitrator along with your Demand for Arbitration. If (i) you willfully
fail to comply with the Notice of Dispute requirement discussed above, or (ii)
in the event the arbitrator determines the claim(s) you assert in the
arbitration to be frivolous, you agree to reimburse Airshopper for all fees
associated with the arbitration paid by Airshopper on your behalf.
• Severability
With the exception of any of the provisions in Section 1 of this Agreement to
Arbitrate ("Prohibition of Class and Representative Actions and
Non-Individualized Relief"), if an arbitrator or court decides that any
part of this Agreement to Arbitrate is invalid or unenforceable, the other
parts of this Agreement to Arbitrate shall still apply.
• Opt-Out Procedure
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT
TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE
("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER
THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME.
You must mail to us to opt-out of the Agreement to Arbitrate. You must also
provide your name, address (including street address, city, state, and zip
code), and ID(s), email address(es) associated with your Airshopper user
account(s) to which the opt-out applies. You must sign the Opt-Out Notice for
it to be effective. This procedure is the only way you can opt-out of the
Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other
parts of this User Agreement and its Legal Disputes Section will continue to
apply to you. Opting out of this Agreement to Arbitrate has no effect on any
previous, other, or future arbitration agreements that you may have with us.
• Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we
agree that if we make any amendment to this Agreement to Arbitrate (other than
an amendment to any notice address or site link provided herein) in the future,
that amendment shall not apply to any claim that was filed in a legal
proceeding against Airshopper prior to the effective date of the amendment. The
amendment shall apply to all other disputes or claims governed by the Agreement
to Arbitrate that have arisen or may arise between you and Airshopper. We will
notify you of amendments to this Agreement to Arbitrate by posting the amended
terms on our website at least 30 days before the effective date of the
amendments. If you do not agree to these amended terms, you may close your
account within the 30-day period, and you will not be bound by the amended
terms.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to
Arbitrate above is found not to apply to you or to a particular claim or
dispute, either as a result of your decision to opt-out of the Agreement to
Arbitrate or as a result of a decision by the arbitrator or court order, you
agree that any claim or dispute that has arisen or may arise between you and
Airshopper must be resolved exclusively by a state or federal court located in
Victoria. You and Airshopper agree to submit to the personal jurisdiction of
the courts located within Victoria for the purpose of litigating all such
claims or disputes.
18. General
Except as otherwise provided in this User Agreement, if any provision of this
User Agreement is held to be invalid, void or for any reason unenforceable,
such provision shall be struck out and shall not affect the validity and
enforceability of the remaining provisions. In our sole discretion, we may
assign this User Agreement, and in such event, we will post notice on our
website.
Headings are for reference purposes only and do not limit the scope or extent
of such Section. Our failure to act with respect to a breach by you or others
does not waive our right to act with respect to subsequent or similar breaches.
We do not guarantee we will take action against all breaches of this User
Agreement.
We may amend this User Agreement at any time by posting the amended terms on
our websites. Our right to amend the User Agreement includes the right to
modify, add to, or remove terms in the User Agreement. We will provide you 30
days' notice by posting the amended terms. After the amendments go public on
websites, your continued access or use of our Services constitutes your
acceptance of the amended terms. We may also ask you to acknowledge your
acceptance of the User Agreement through an electronic click-through. This User
Agreement may not otherwise be amended except through mutual agreement by you
and an Airshopper representative who intends to amend this User Agreement and
is duly authorized to agree to such an amendment.
The policies and terms posted on our website may be changed from time to time.
Changes take effect when we post them on the websites.
If you create or use an account on behalf of a business entity, you represent
that you are authorized to act on behalf of such business and bind the business
to this User Agreement. Such account is owned and controlled by the business
entity.
No agency, partnership, joint venture, employee-employer or
franchiser-franchisee relationship is intended or created by this User
Agreement.
The User Agreement and all terms and polices posted through our Services set
forth the entire understanding and agreement between you and Airshopper and
supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees,
Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity,
Legal Disputes, and General.
