These terms form the basis upon which you may use our website, www.swingles.com (referred to as the “site”).
The parties to these terms are:
- 2.1. Exa Online USA Pty Ltd. ABN 41 121 201 330 (“us”, “we”, and “our”); and
- 2.2. an end user (including anyone who views the site), anyone who uses our site (“you”).
- 3.1. Our site assists users to meet people with common interests for personal relationships (“permitted purpose”). To avoid doubt, the permitted purpose does not include any commercial or business purpose or activity by anyone other than us.
- 3.2. In consideration for providing you with a licence to use the site, you agree to only use the site in accordance with these terms.
- 4.1. We grant you a personal and non assignable licence to use the site.
4.2. Your licence is made up of the following:
- 4.2.1. this document;
- 4.2.3. any other policy that we may publish on the site from time to time.
- 4.3. You must only use the site strictly on the terms of your licence, and only for the permitted purpose.
4.4. A condition of this licence is that:
- 4.4.1. except for the free membership category, you must pay the appropriate membership fee to access the benefits and features of different membership levels;
- 4.4.3. our advertisers, and other users of the site may send you email from the site;
- 4.4.4. you have never been convicted of a violent or sexual crime and you are not a registered sex offender;
- 4.4.5. you may only establish and use one user account with the site;
- 4.4.6. you are aged 18 years and over;
- 4.4.7. your use of the site signifies your agreement to these terms (as amended from time to time); and
- 4.4.8. you may not share your account with anyone else.
4.5. You must ensure that:
- 4.5.1. all information you provide us in registering to use the site is true and correct, and is at all times kept up to date; and
- 4.5.2. you comply with all applicable laws.
5. Personal Profiles
- 5.1. Our site allows you to create a personal profile that is visible to other users of the site.
- 5.2. We may from time to time specify the fields which you may and must complete in your personal profile.
- 5.3. We may in our absolute discretion refuse, suspend or cancel the publication of a personal profile.
5.4. Where we allow you to post a personal profile (including any pictures) you warrant that:
- 5.4.1. it fully complies with clause 8;
- 5.4.2. it is not unlawful;
- 5.4.3. it complies with any other policy we publish; and
- 5.4.4. it contains true and correct information to represent yourself, such as name and age.
- 5.5. We may edit a personal profile for any reason that we deem (in our absolute discretion) appropriate.
6. Messages and Communications
- 6.1. The site provides a function to allow you to communicate with other users of this site.
6.2. You may communicate with other members as outlined in clause 6.1, either by way of:
- 6.2.1. email – an internal electronic messaging platform, which is accessible from your account console;
- 6.2.2. likes – a message which indicates your interest in another user of the site, and which is accessible from your account console;
- 6.2.3. chatrooms – a facility for members to go into a virtual room to have an online chat with one or more members;
- 6.3. Depending upon your level of membership and/or Message Credits on our site we may restrict or limit your ability to use communications facilities referred to in clause 6.2 above.
- 6.4. Communication with other users of the site is subject to these terms, including any rules or policies that we may introduce from time to time.
6.5. We may delete any form of communication where:
- 6.5.1. we suspect a breach of these terms;
- 6.5.2. where an account has been inactive for a period of time;
- 6.5.3. for any other reason that we deem appropriate at our unfettered discretion.
- 6.6. Membership to one of our sites does not give you membership to any other.
7. External links and Activities
7.1. We may provide you with links to external websites from the site (“External Links”), where we do you acknowledge that:
- 7.1.1. we do not endorse or recommend such website;
- 7.1.2. such websites do not form part of our website;
7.1.3. we do not warrant that:
- 188.8.131.52. any information contained in such website is true and correct;
- 184.108.40.206. these external websites do not contain viruses, trojans and other malware.
- 7.2. We may promote, advertise or sponsor functions, events, travel packages, offers, products, services, competitions or other activities that may be conducted offline and may be conducted by other parties (“External Activities”).
7.3. We may also provide you with External Links for the purpose of External Activities, where we do you acknowledge that:
- 7.3.1. we do not endorse or recommend such External Activities or External Links;
- 7.3.2. such External Activities or External Links do not form part of our website and may be subject to separate terms and conditions;
- 7.3.3. you participate in any External Activities or use External Links at your own risk;
- 7.3.4. we are not liable for any loss, damage or claim arising from External Activities or External Links whether or not such External Activities or External Links are provided by our contractors;
7.3.5. we do not warrant that:
- 220.127.116.11. any information contained in such website activities or links is true and correct;
- 18.104.22.168. these external do not contain viruses, Trojans and other malware.
8. Acceptable Use / Prohibited Conduct
You must not use the site (or any services provided on the site) to:
- 8.1. abuse, offend, menace, harass, intimidate or stalk anyone;
- 8.2. break the law or allow another person to break the law;
- 8.3. damage property including intellectual property;
- 8.4. injure anyone;
- 8.5. mislead or deceive anyone including through the creation of ‘spoof’ websites;
- 8.6. facilitate the commission of a tort, or breach of contract;
- 8.7. allow for the misuse of anyone’s confidential information;
- 8.8. misuse or allow for the misuse of anyone’s personal information, sensitive information or health information, as defined by the Privacy Act 1988;
- 8.9. facilitate or engage in any act or omission which is in contravention of the laws regarding Spam including the Spam Act 2003;
- 8.10. interfere with someone else’s computer without their permission;
- 8.11. allow a minor to appear in, view or access material which is inappropriate (or not classified for minors) for minors;
- 8.12. send or distribute any virus, worm, trojan or other malicious code;
- 8.13. send alter or create an electronic message (including spoofing) to conceal the true identity of the person from whom it originates;
- 8.14. interfere with the proper operation of a website, blog, newsgroup, forum or chatroom;
- 8.15. use a remote system (such as a mail server or proxy server), without the authorisation of the owner of it, for the transmission of data;
- 8.16. operate a service such as a mail server or proxy server, without proper controls to prevent the use of the service by unauthorised third parties for the transmission of data;
- 8.17. control or contribute to a Denial of Service attack;
- 8.18. solicit users of the site for anything other than the permitted purpose;
8.19. send, display or publish material which:
- 8.19.1. is obscene or offensive;
- 8.19.2. is defamatory or potentially defamatory;
- 8.19.3. would contravene anyone’s intellectual property rights;
- 8.19.4. is likely to incite sexual, religious or racial hatred, violence, discrimination or vilification;
- 8.19.5. contains images of persons other than yourself;
- 8.19.6. contains images of persons in uniform including emergency services and military personnel; and despite anything to the contrary you must not procure another person to do any of the things prohibited under these terms.
- 8.19.7. is intended to or is likely to harass, annoy, threaten or intimidate any other members or other people or organizations. This includes but not limited to images of firearms, weapons, knives and tools of torture.
9. Intellectual property
- 9.1. Subject to clause 9.2, any intellectual property created while using the site vests solely with the person who created it – but you grant us an unlimited, royalty free licence to use and display anything which you create or post on the sites.
- 9.2. Despite anything to the contrary you assign all intellectual property rights in your personal profile to us – your personal profile is our property and you may not use it other than on our site.
- 9.3. You may not use any of our intellectual property (including everything on our site, our name, logo, or the content of our site) without our prior written approval.
- 9.4. You must notify us immediately if you become aware of any advertisement or Personal Profile on the sites which infringes the intellectual property rights of any third party.
- 9.5. You may not reproduce, retransmit, distribute, sell, publish, broadcast or circulate, or in any way disclose the information contained on the site or received through the site to anyone without our prior written approval.
- 9.6. For the purpose of these terms ‘intellectual property’ includes all patents, copyright, registered designs, registered and unregistered trademarks, trade secrets, logos, domain names, know how and confidential information and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967, whether created before or after this agreement, whether existing in Australia or any other country.
10.1. You acknowledge that:
- 10.1.1. the persons who use the site are not our agents, partners, joint venturers or authorised representatives – they are independent;
- 10.1.2. we do not endorse or warrant the content of any Personal Profiles, advertisements, reviews or other content on the site;
- 10.1.3. we do not have any ability to vet any other users of the site;
- 10.1.4. you are solely responsible for any relations or involvement you enter into with another user of the site;
- 10.1.5. to the extent permitted by law we do not warrant that the content of the site is current or error free;
- 10.1.6. we do not offer any service levels for availability of the site, and the site may not be available for various reasons including scheduled and unscheduled maintenance;
- 10.1.7. connection to the internet poses risks, we cannot guarantee the security of all information in your Personal Profile or your communications such as email;
- 10.1.8. by accessing the site, you may have access to visual images, verbal and written descriptions and audio sounds of a sexually explicit and erotic nature that is not suitable for anyone who is younger than 18 years of age or who does not wish to be exposed to such materials;
- 10.1.9. you should not rely upon the content of the site for any type of advice;
- 10.1.10. you should never communicate financial information or publish your address, email address or telephone number, or any other personally identifiable information in any Personal Profile or anywhere else on the site;
- 10.1.11. we are not obliged to intervene in disputes between users of the site – but may do so at our absolute discretion.
- 10.2. You must accept use of the site from us subject to these acknowledgements, and none of them constitutes a defect in the site.
- 10.3. You release us from all losses and claims in respect of, or out of, such matters you acknowledge or their consequences.
11. Limitation of liability and indemnity
11.1. Consumer rights and remedies
Important consumer information: You can obtain full details of the consumer rights and remedies referred to in this clause from the Australian Competition and Consumer Commission (‘ACCC’) at www.accc.gov.au or from your local consumer protection agency.
11.2. Rights and remedies for PDH goods and services
If we supply you with goods or services of a kind ordinarily acquired for personal, domestic or household (‘PDH’) use or consumption you have extensive rights under the Australian Consumer Law (‘ACL’) including consumer guarantees and remedies. Nothing in this agreement limits those rights and remedies in any way.
11.3. Rights and remedies for non-PDH goods costing no more than $40,000
If we supply you with goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption but costing no more than $40,000 you have extensive rights under the ACL including consumer guarantees and remedies but:
11.3.1. in relation to these goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
- replacing the goods or supplying equivalent ones;
- repairing the goods;
- paying the cost of replacing the goods or of acquiring equivalent ones; or
- paying the cost of having the goods repaired; and
11.3.2. in relation to these services, our liability for failure to comply with a consumer guarantee is limited to:
- supplying the services again; or
- paying the cost of having the services supplied again.
- 11.3.1. in relation to these goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
11.4. Exclusion of implied terms and limitation of liability
Important consumer information: Nothing in this clause limits the consumer rights and remedies referred to in clause 11.1 to 11.3 (inclusive). You can obtain full details of those consumer rights and remedies from the Australian Competition and Consumer Commission (‘ACCC’) at www.accc.gov.au or from your local consumer protection agency.
Subject to clause 11.1 to 11.3 (inclusive):
- 11.4.1. Any representation, warranty, condition, guarantee or undertaking that would be implied in this agreement by legislation, common law, equity, trade, custom or usage or otherwise is excluded to the fullest extent permitted by law.
- 11.4.2. We do not warrant or represent the performance, accuracy, reliability or continued availability of the services or that the services will operate free from faults, errors or interruptions.
11.4.3. We are never liable to you for:
- economic loss;
- business interruption;
- loss of revenue, profits, actual or potential business opportunities or contracts;
- anticipated savings;
- loss of profits;
- loss of data;
- indirect or consequential loss;
- an act or omission by a party for whom we are not responsible in law;
- a fault in or failure of a facility we do not control or operate;
- any loss arising from circumstances beyond our reasonable control; or
- our failure to continue to provide the services to you for any reason whatsoever.
- 11.4.4. Otherwise, our maximum aggregate liability to you under, in connection with or arising out of this agreement or our service to you (whether pleaded in contract, tort, breach of statutory duty or on any other basis, whether arising from acts or omissions, and whether in relation to damage or loss the risk of which we were or should have been aware) is limited to the aggregate fees you have actually paid to us over the last 12 months.
To the greatest extent permitted by the law, and subject to clauses 11.1 to 11.4, you indemnify us (on a full indemnity basis including all legal costs and expenses) against any claim, loss or damage we suffer to the extent that it arises from:
- 11.5.1. any act or omission of yours;
- 11.5.2. any breach of any law;
- 11.5.3. any breach of these terms;
- 11.5.4. any unauthorised use of a service offered by the site – by you or anyone using the site.
- 12.2. We may use your personal information for promotional and marketing purposes until you request to opt out of receiving such information.
- 12.3. You also consent to us sending you email to advise you of changes to the site or to market the site, our services to you or the goods or services of our advertisers.
- 12.4. Where you obtain personal information through the use of the site, you must destroy that personal information within a reasonable time after you have used it for a purpose permitted by these terms.
- 12.5.1. law enforcement;
- 12.5.2. any government or statutory authority;
- 12.5.3. any Court; and
- 12.5.4. our lawyers to advise and or defend us against any claim.
13. Membership and Fees
- 13.1. If you choose to purchase Message Credits or a VIP membership, then you must pay us our then current fee as set out on the site.
- 13.2 “Message Credits” are the currency used on www.theloveclub.com.au to initiate contact with other members of the site. A message credit opens up a 30 day contact channel with the other person allowing you to message them within that period for free.
13.3. We offer the following membership types to our site:
- 13.3.1. “Standard Member” - provided the account remains active, you may use this as long as you wish free of charge. Standard Membership does not entitle you to use some tools and functionality of the site; and
- 13.3.2. “VIP” Member – This membership type requires the payment of a fee and provides a different range of additional tools and functionality. Membership is for a limited period of time – details of which are available at Upgrade Account page located on our site.
13.4. To the extent permitted by law:
- 13.4.1. Message Credits and VIP memberships are non refundable either in part or in whole and are non transferable to any other person or site that we operate; and
- 13.4.2. Message Credits and VIP memberships cannot be suspended by you, even if you don’t use the site.
- 13.5. When you purchase Message Credits or VIP memberships, your credit card details will be stored either by our bank or gateway provider to allow automatic renewals.
- 13.6. To ensure an uninterrupted service, VIP memberships purchased via credit card will be automatically renewed 3 days before they expire, and the credit card on file will be charged. You can remove or change your credit card details and cancel the automatic renewal at any time from the Payment Details page on the site.
- 13.7. If you do not wish to renew a VIP membership then you must let us know either in writing or via the user console on the site (or in any other way we agree) not less than 3 days before the expiration of your paid membership.
- 13.8. If your VIP Membership lapses or is cancelled, then your membership will return to a Standard Membership and you will lose access to privileges that VIP Membership offers.
14. Termination / Suspension
14.1. In addition to any other right we have under these terms, we may terminate or suspend your licence to use the site at anytime:
- 14.1.1. where you fail to pay us money, where you make a payment through an unauthorised or unlawful payment method or chargeback money you have paid us; or
- 14.1.2. where you breach these terms; or
- 14.1.3. where we receive a complaint about you; or
- 14.1.4. for any other reason we deem appropriate;
- 14.2. Where your membership is terminated by us, you will not be entitled to a refund of your fees paid or pro rata thereof. This clause shall not merge upon termination of this agreement.
- 14.3. In addition to any other right of termination we may terminate your licence to use our site at anytime where we wish to discontinue our site or redevelop our site.
- 14.4. You may terminate your account with us at anytime, but where you do, any membership fees you have paid are forfeited, to the extent permitted by law.
15.1. Either party may give notice:
- 15.1.1. by email through the Contact Us page on our site;
- 15.1.2. by ordinary mail or hand delivery, in our case to the current postal address indicated by our web site contact details page – and in no other way.
15.2. A notice is deemed to be served:
- 15.2.1. if it is mailed: before noon on the second business day after posting;
- 15.2.2. if it is emailed during business hours upon the email leaving the sender’s mail server, and if outside business hours 9am on the next business day;
- 15.3. Until we otherwise advise you in writing our address for service by mail is: Exa Online USA Pty Ltd. PO BOX 1026<br>North Sydney<br>NSW 2059<br>Australia
- 15.4. Any notice that is given must be in the English language.
If any provision in this agreement is unlawful or inconsistent with any law, then to the extent of the unlawful nature or inconsistency, that provision may be severed from without affecting the remainder of the agreement.
- 17.1. Subject to clause 17.2, this agreement and any contract arising under it is governed exclusively by the law of NSW, Australia. Any legal proceedings relating to them can only be taken in courts with jurisdiction in NSW.
- 17.2. Where the law gives you a right to bring a proceeding in any other state of Australia, then clause 17.1 does not in any way limit that right.
No right under these terms can be waived except by notice in writing signed by the party waiving it. If a party overlooks a breach by the other party on one or more occasions, it is not taken to have agreed to any future breach.
- 19.1. We may amend at any time without notice:
- 19.1.1. these terms; and
- 19.1.2. any other document which forms part of your licence to use our site.
- 19.2. It is your responsibility to regularly review these terms.
- 20.1. Headings and footnotes are only for convenience. They are to be ignored when interpreting the agreement.
- 20.2. A reference to the singular includes the plural and vice versa.
- 20.3. Where one thing is said to include one or more other things, it is not limited to those other things.
- 20.4. There is no significance in the use of gender-specific language.
- 20.5. A “person” includes any entity which can sue and be sued.
- 20.6. A “person” includes any legal successor to or representative of that person.
- 20.7. A reference to a law includes any amendment or replacement of that law.