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.
3. Using Airshopper
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.
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.
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.
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, 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.
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.
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.
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.
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.
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.