Terms and Conditions of Use

Last updated: November 01, 2021

Terms and Conditions of Use ("TCU") applicable to an affiliate, member, buyer, seller, or swapper, of SwapBanana.com and SwapBanana.

This TCU is the contract between you and SwapBanana (“us”, “we”, etc). By visiting or using Our Website, you agree to be bound by them.

SwapBanana.com and/or SwapBanana are the trade names of EXH Capital Partners, LLC., incorporated in Florida, USA, whose registered office is at 17888 67th Ct N, Loxahatchee, FL 33470.

If you are accessing or using SwapBanana you acknowledge and agree SwapBanana is a private site owned operated by EXH Capital Partners, LLC. and that you are legally able to enter into a binding contract, i.e. must be 18 years of age or older, to buy, sell or swap your Product or Professional Service on your behalf.

If you are accessing or using SwapBanana on behalf of a business, you represent and warrant to SwapBanana that you have authority to accept the same TCU on behalf of that business and that that business agrees to the TCU.

If you do not agree to the TCU, you are not authorized to use SwapBanana or download the App. We may modify the TCU at any time in our sole discretion. You are responsible for periodically checking for changes and are bound by them if you continue to use SwapBanana. Our privacy policy (swapbanana.com/privacypolicy), prohibited list (swapbanana.com/prohibitedlist), and all other policies, site rules, and agreements referenced below or on SwapBanana, are fully incorporated into these TCU and you agree to them as well.

If you use our Service, you do so in accordance with these terms. If you are unable to accept these terms, your only remedy is to leave Our Website and stop using the SwapBanana Website or the SwapBanana App.

1. Definitions

“SwapBanana App”	means our iOS or Android software application which enables a user of a Device to buy, sell or swap a Product or Professional Service. It includes any “app” or other product, material or thing offered for License by us on Our Website, including supporting material, in hard or soft copy, and whether or not bought by you. A reference to “SwapBanana” shall be a reference to all or part of the SwapBanana App or Our Website.
“Service”	means the service we provide to you via the SwapBanana App or Our Website.
“Member”	means a person or business that joins SwapBanana by completing the registration form and choosing a Plan on Our Website.
“Fee”	means, collectively the Listing Fee, Selling Fee and Member Fee.
“Listing Fee”	means a fee you pay to SwapBanana for listing a Product or Professional Service on Our Website directly or through the SwapBanana App, calculated as a percentage of each listed value in accordance with the Listing Fee Range.
“Listing Fee Range”	means the scale of monetary values: $0.00 to $100.00, $100.01 to $250.00, $250.01 to $500.00, $500.01 to $1,000.00, more than $1,000.00.
“Referral Fee”	means a fee in $USD, ฿ana Coin or both, paid by SwapBanana to a Member for referring other Members.
“Selling Fee”	means the commission you pay us, calculated as a fixed fee or a percentage of the value of sales made by you through us, net of VAT.
Featured Item Fee	means the fee you pay to us to feature your product or service on Our Website home page, rotated from the available featured items or visible by scrolling through a slider or carousel of featured products.
“Member Fee”	means the subscription fee we charge Members for setting you up as a buyer, seller or swapper through Our Website in accordance with a Plan.
“Plan”	means the fee we charge to be a Member of Our Website for varying periods of time.
“฿ana Coin”	means the digital currency that can be used on Our Website for the exchange of Products or Professional Services. ฿ana Coins cannot be used alone for any one transaction. Each Product for sale must have a minimum listing price of $1 USD + however many ฿ana Coins at the Sellers discretion.
“฿ana”	means ฿ana Coin.
“Content”	means the textual, visual or audio content that is encountered as part of your experience using the SwapBanana App or Our Website. It may include, among other things: text, images, sounds, videos and animations. It includes content Posted by you and all of the content provided by Members to inform, illustrate and promote the sale or swap of Products or Professional Services.
“Copy or Publish”	with reference to the SwapBanana App or Our Website, means reproducing or publishing in whole or in part, using any means, in any medium. It includes breaking up, changing, cropping or any other change or use as part of some other software.
“Device”	includes any computer, device, work station, smart phone, tablet, electronic application or electronic receiving device.
“License”	means a License granted by us to you, under the terms of this agreement, for use of the SwapBanana App or Our Website.
“Our Website”	means any website or service designed for electronic access by mobile or fixed devices which is owned or operated by us. It includes all of the hardware and software installations that enable Our Website to function.
Post	means place on or into Our Website any Content or material of any sort by any means.
“Product”, “Professional Service”	means any product offered for sale or swap on Our Website, through any medium. means an intangible product that a contractor or product vendor sells to help a customer manage a specific part of their business or personal life.
“Seller”	means a person or organization whose Products or Professional Services we offer for sale through the SwapBanana App or Our Website.
“Software”	means the software which constitutes the SwapBanana App or which provides any electronic function which supports the use of it or of Our Website.
“Swap”	means an agreement between two Members to exchange Products or Professional Services, one or more, for the other.

2. Interpretation

In this agreement unless the context otherwise requires:

2.1. a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.

2.2. a reference to a person includes a human individual, a corporate entity and any organization which is managed or controlled as a unit.

2.3. a reference to a person includes reference to that person's successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organization involving that person.

2.4. the headings to the paragraphs and schedules (if any) to this agreement are inserted for convenience only and do not affect the interpretation.

2.5. any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.

2.6. except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person.

2.7. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party.

2.8. all money sums mentioned in this agreement are calculated net of VAT, which will be charged when payment is due.

3. Our Contract

3.1. We do not offer Service in all countries. We may refuse service if you live in a country we do not serve.

3.2. In entering into this contract you have not relied on any representation or information from any source except the definition and explanation of the Service given on Our Website.

3.3. We are neither a buyer nor seller of Products or Professional Services offered for sale in any form. We are not either a principal or agent in a buying transaction.

3.4. SwapBanana is a marketplace. In consideration of the Fee charged by us, we provide for you an Internet marketplace as an arm's length contractor. We are agents of a Seller only to the extent of the use of Our Website as a platform for sale of his/her Products or Professional Services and on occasion for the collection and forwarding of your money, in which case we are not responsible to you further than to take your money and pass it to the Seller. We are not partners or joint venturers.

3.5. We welcome any comment or complaint about a Seller, which you make through Our Website. We may act upon a complaint in our discretion, for the benefit of the body of our members.

3.6. We are not responsible for delivery of any Product or Professional Service you order or for the returns and repayment procedure should you decide to return a Product or cancel a Professional Service for any reason.

3.7. In any dispute with a Seller, you should deal only with the Seller. We have neither legal obligation nor detailed information about the Product or Professional Service.

3.8. If you place a Product or Professional Service for sale or swap on Our Website, you do so subject to these terms.

3.9. When you place a Product or Professional Service on Our Website, you will be bound to provide on Our Website all the information required by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

3.10. We may change this agreement in any way at any time. The version applicable to your contract is the version which is posted on Our Website at the time you buy or Post a Product or Professional Service.

3.11. In contracting with users of the SwapBanana App, we make certain assumptions as to your compliance with the law and to the procedures set out on Our Website. You agree to comply with those procedures.

3.12. Insofar as we provide points of guidance on Our Website, relating to product delivery, returns, payments and other practical matters, such guidance is not to be interpreted as appropriate to your particular Products, Professional Services or circumstances. They do not differentiate between the compliance requirements of different merchants nor do they cover exclusions which may apply to you or to some of your Products or Professional Services. Accordingly, you must not assume that you have complied with the Regulations by adopting our standards. Accordingly, your compliance must be provided by:

3.12.1 your business procedures;

3.12.2 all of the pre-purchase information you give to prospective buyers;

3.12.3 the content on your website.

For the sake of good order, we remind you that the Regulations provide that all information of whatever nature, provided to a buyer, is deemed to be relevant and true.

3.13. Although we are not a party to your contract with a buyer introduced to you via Our Website, we shall remove your Products or Professional Services from offer if a Member of Our Website has a valid complaint against you.

3.14. Subject to this agreement and to the procedures set out on Our Website, you may enter a Product or Professional Service for sale or swap through Our Website.

4. Tell-A-Friend

4.1. Tell-A-Friend is a function of Our Website that allows you to enter the names and email of your friends and colleagues, who you think would be interested in knowing about Our Website and community.

5. SwapBanana Referral Program

5.1. The SwapBanana referral program allows Members to refer other potential members to Our Website and in doing so earn a Referral Fee should one or more referrals become Members. This feature is accessed through the Members ‘MyOffice’ area, in the ‘Add Referral’ section. The value of the Referral Fee is published on Our Website and may change from time-to-time at our discretion.

6. Your Personal Information and Account Activity

6.1. When you visit Our Website, you accept responsibility for any action done by any person using your name, account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorized manner.

6.2. You agree that you have provided accurate, up to date, and complete information about yourself. We are not responsible for any error made as a result of such information being inaccurate.

6.3. You agree to notify us of any changes in your information immediately it occurs. If you do not do so, we may terminate your account.

6.4 Your personal information and account activity on Our Website is bound by our Privacy Policy and Cookie Policy.

7. Your License To Us

7.1. You now warrant that:

7.1.1 you have the authority to enter into this agreement and bind the person or organization named by you as the seller and licensor;

7.1.2 you own the copyright in all Content you may Post to Our Website or that you have the permission of the owner to use it and to grant this License to us.

7.1.3 you know of no lawful reason why any person should object to or claim for infringement of, any intellectual property right relating to any Content you may Post.

7.2. In Posting data through our Service you grant to us an irrevocable, sub-licensable, License to display your Product in images and text in the public domain. In doing so you understand and accept that we shall grant a sub-License to any person in any terms we may from time to time decide, to download your Product images or any other Content, to his mobile phone.

7.3. We will use that License only for commercial purposes in reference to SwapBanana and will stop using it after a commercially reasonable period of time.

7.4. You agree to waive of your right to be identified as the author and your right to object to derogatory treatment of your Content as provided in the Copyright, Designs and Patents Act 1988 s80.

7.5. Posting Content does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.

7.6. You understand that you are personally responsible for your breach of intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you;

7.7. You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.

7.8. Please notify us of any security breach or unauthorized use of your account.

8. Your Product or Professional Service Placement

You agree:

8.1. not knowingly to place any Product for sale which is not of merchantable quality or which requires for its setup or use a level of technical expertise which is not fully explained to a customer before purchase.

8.2. to make suitable arrangements for the delivery of each Product, including packaging and carriage, so that you can comply with the delivery terms you have given to us.

8.3. immediately to remove from sale on Our Website any Product which for any reason, you are unable to supply.

8.4. not to re-place any Product we remove from offer for sale.

9. The Buying Procedure

9.1. SwapBanana is not responsible for the fulfillment of your contract to buy a Product or Professional Service.

9.2. Unless it is clear to the contrary, you may assume that every sale is made by a Seller in the course of his/her business.

9.3. Subject to discounts and promotions, Products are offered for sale at a fixed price. VAT may be due and will be either included in the price or shown separately. If not shown, it will not be charged.

9.4. All Products will be subject to a delivery charge which will be shown at the pay point. The delivery charge will be fixed by the Seller for each item offered for sale. It may be changed at the discretion of the Seller.

9.5. Neither we nor the Seller can be responsible for action by any governmental authority. We do not know and are not responsible for duties, taxes, delays or impounding of any item.

9.6. Any detail given by us in relation to exchange rates is approximate only and may vary from time to time.

9.7. For security purposes (yours and ours) we will not permit more than a maximum number of transactions with you in a given period of time.

9.8. To make future use of Our Website easier and faster for you, we will retain the personal and delivery information you give to us. We will not retain information relating to your payment or credit card. This financial information never comes into our control. The information is given into a page which is in reality a page of our payment service provider. For detailed about disclosure of personal information please see our privacy notice.

10. The Selling Procedure

10.1. SwapBanana is not responsible for the fulfillment of your contract to buy a Product or Professional Service.

10.2. You agree that a contract to sell a Product or Professional Service offered by you is a firm and binding contract as soon as your customer's payment has been accepted by our payment service provider.

10.3. Deliveries of hard copy and physical Products will be made from your premises, by post or by a carrier instructed by you subject to the contract between you and your customer. In your contract with customer you should clearly specify the mode of delivery and expense involved.

10.4. In the absence of information to the contrary, you agree to dispatch a Product within three days of notification of order by us, by a method likely to reach the buyer within a further seven days.

10.5. You will notify the customer by email on the date of sending, that the Product has been dispatched and of the expected delivery date.

10.6. If at any time, any customer notifies you of non-delivery within the time scale offered by you on Our Website, you will investigate immediately and advise the customer of what you are doing to rectify the issue and when you expect to be able to deliver the Product.

10.7. If it is apparent that a customer has not received a Product within 7 days of the expected delivery date, you will refund money paid, including any delivery charge. This is a condition of your contract with us because our reputation, as well as yours, is at stake in those circumstances.

10.8. Products may be offered for sale subject to any discount or promotion arranged between you and us.

10.9. Subject to discounts and promotions, Products are offered for sale at a fixed price, inclusive of VAT.

10.10. All Products will be subject to a delivery charge which will be shown at the pay point. The delivery charge will be fixed by you for each item offered for sale. It may be changed at your discretion. Once you have sold an item, the delivery charge offered by you at the time of purchase cannot be increased.

10.11. You agree to provide an adequate stock of any Product placed by you for sale through Our Website and to tell us, through your control panel, if at any time your supply is exhausted. If that happens, you must also remove the Product from sale or mark it as unavailable.

10.12. You agree to comply with the requirements implied in the returns policy set out on Our Website.

11. The Swapping Procedure

11.1. SwapBanana is not responsible for the fulfillment of your contract to swap a Product for a Product or a Product for a Professional Service.

11.2. Swaps are conducted as follows: 11.2.1 The first member adds an item to the swapping list by providing the title, description, rate, photo, and shipping charges. 11.2.2 The second member who wants to swap the item can select the first members list and make an offer by providing their item and an amount to swap with. 11.2.3 The second member receives a new entry in his/her list. 11.2.4 The first member receives a new entry in their list. Now, he/she can view the offer and accept or reject it with a counter offer. 11.2.5 The process continues to the point where both members agree for a mutual transfer of goods. The user information of both of the members is shown and they can now proceed with the transfer physically. The posted item is moved to the 'Swapped Items' list, and it will not be available for swapping any longer. Both of the members have the ability to provide feedback of the other member's dealings. All rated members can be banned from further trades by the administrator if necessary. 11.3. There are no fees required for swap listings. It is open to all Members.

12. Acceptance

12.1. Your order is an offer to buy from the Seller.

12.2. Nothing said or done by the Seller is an acceptance of an order until the Seller actually dispatches the Product.

12.3. At any time before a Product is dispatched, the Seller may decline to supply the Product to you without giving any reason.

13. How We Handle Your Content

13.1. Our Privacy Policy is strong and precise. It complies fully with the Data Protection Act 2018.

13.2. If you Post Content to any public area of Our Website it becomes available in the public domain. We have no control over who sees it or what anyone does with it.

13.3. Even if access to your text is behind a user registration it remains effective in the public domain because someone has only to register and log in, to access it. You should therefore avoid Posting unnecessary confidential information.

13.4. You now irrevocably authorize us to publish feedback, comments and ratings about your activity through Our Website, even though it may be defamatory or critical.

13.5. Posting Content of any sort does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.

13.6. You understand that you are personally responsible for your breach of someone else’s intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you;

13.7. You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.

13.8. Please notify us of any security breach or unauthorized use of your account.

14. Consumer Protection: Cancellation and Refunds

This and the following paragraph are not contractually part of this agreement. This is a statement of your rights as a consumer under the Consumer Contract (Information Cancellation and Additional Charges) Regulations 2013 ("the Regulations") and of the procedures with which all our Sellers have been asked to comply. We have no responsibility if they fail to do so. If you have any problem with the Product or Professional Service you have purchased from Our Website please refer to the Seller. Your contract is with them. They have the information and systems to be able to help you.

Please note that following sub paragraphs apply only to a Product delivered to you in a hard medium such as a DVD or data storage device.

14.1. Products you buy here are delivered within 7 days from the day you place an order to purchase a Product.

14.2. The following rules apply to cancellation of your order:

14.2.1 If you have ordered the Product, but not received it, you may cancel your order without giving a reason, at any time within 7 days of your order. You will have no obligation and your Seller will return your money.

14.2.2 If you have ordered the Product, and received it, you may cancel your order at any time within 7 days of the date you received it. You must tell your Seller that you wish to cancel. You must also send the Product back to him within that same 7 day period.

14.3. The Seller will return your money subject to the following conditions:

14.3.1 the Seller receives the Product in a condition in which he can re-sell it at full price.

14.3.2 you comply with the Seller’s procedure for returns and refunds. The Seller cannot return your money unless he knows who sent back the product.

14.4. The option to cancel your order is not available:

14.4.1 if you purchase sealed goods which relate to health or hygiene, and they become unsealed after delivery, or cannot be re-sold for some other reason;

14.4.2 if they are a hard medium for a product in soft copy, which comes to you sealed and is returned to them unsealed.

14.4.3 If the goods are somehow mixed with other goods so that they cannot identify or easily separate them.

14.5. You are responsible for the cost of returning the Product. We or your Seller have no obligation to refund your cost of re-packing and returning the Product.

14.6. In any of the above circumstances, the Seller will return your money within 7 days. We are not able to make the refund. Please note that following sub-paragraphs apply only to a Product you download or which the Seller sends as an email attachment.

14.7. If you buy a Product which is delivered to you in soft copy, whether by download, or email or some other medium, the law provides that you can opt out of your right to the 14 day cancellation period. This is to prevent fraud by a buyer. Of course, the Seller will not accept your order unless you agree to lose your cancellation right.

14.8. You do this by instructing the Seller to arrange delivery immediately, or as soon as he can. If you do that, the Seller will send your Product immediately and you lose your right to cancel your order.

14.9. By accepting these terms, you now agree that you are instructing the Seller to deliver immediately and you understand that, in doing so, you lose your right to cancel your order within 7 days.

14.10. This paragraph does not affect your rights in the event that the Product is faulty.

15. Liability for Subsequent Defects

Please note that following sub paragraphs apply only to a Product delivered to you in a hard medium such as a DVD or data storage device.

15.1. The following rules apply to the return of the Product you claim to be faulty or defective in any way:

15.1.1 the Product must be returned to the Seller as soon as any defect is discovered but not later than 7 days from receipt by you.

15.1.2 the Seller does not have to accept returns unless there was a defect in the Product at the time of purchase, or the Seller has agreed in correspondence that you may return it.

15.1.3 before you return the Product to the Seller, please carefully re-read the instructions and check that you have assembled it correctly and complied with any provisions relating to the power supply, plugs and sockets.

15.2. The Seller will return your money subject to the following conditions:

15.2.1 you comply with the Seller’s procedure for returns and refunds.

15.2.2 the Seller cannot return your money unless he knows who sent back the Product.

15.3. If the Seller agrees that the Product is faulty, the Seller will:

15.3.1 repair or replace the Product, or

15.3.2 refund the full cost you have paid including the cost of returning the Product. Please note that following sub-paragraphs apply only to a Product you download or which the Seller sends as an email attachment.

15.4. The following rules apply if you find a defect in the Product or claim it to be faulty in any way:

15.4.1 you must report to the Seller as soon as any defect is discovered but not later than 7 days from receipt by you.

15.4.2 before you report an issue to the Seller, please carefully re-read the manual, processor requirements, system compatibility to confirm that there is definitely a defect in the Product.

15.4.3 You must tell the Seller clearly what is the fault you complain of, when it first became apparent, and other information to enable the Seller to identify or reproduce it.

15.5. If the Seller agrees that the Product is faulty, then the Seller will:

15.5.1 fix the issue and send a new copy to you, or

15.5.2 refund the full cost you have paid.