(Last update: 17.03.2010)
1. General / Overview
The following General Terms and Conditions shall apply to the business relationship between Entertainment Shopping AG, its internet platform www.Swoopo.co.uk ("Swoopo" or "We") and our users. By using Swoopo, the user accepts the following General Terms and Conditions, as well as the manner in which Swoopo and its “BidButler” operate as described on the website www.Swoopo.co.uk. Variations or alterations in the following Terms and Conditions shall only be binding upon Swoopo if agreed to in writing.
Any special promotions run by Swoopo shall only be valid if they are announced on Swoopo’s website or in its corresponding email newsletter. Certain promotions may only be valid for a limited time, and details of any such timings will be announced on the website or in a newsletter. Once the advertised time limit of any such promotion has been reached, or the relevant auction or auctions have ended, the promotion is also finished.
Any bidding advice or other written materials (for instance, ‘Help’ articles) posted on Swoopo are provided solely as suggestions and are not intended to be relied upon. Swoopo is not liable or responsible for any actions taken due to a user or other person having read or been told about such advice or other written materials.
We reserve the right to change these General Terms and Conditions at any time. Any such changes will take effect when they are posted on the website and it is the responsibility of users of the website to read the General Terms and Conditions on each occasion that they use the website and continued use of the website by users shall signify acceptance to be bound by them.
2. Eligibility to Participate / Registration with “My Swoopo” / Disqualification
By using Swoopo, the user declares that they are legally capable of entering into binding contracts and that they are at least 18 years old.
Employees and relatives of employees of Swoopo are not eligible to participate in Swoopo auctions under any circumstances.
Online registration is not required to take part in Swoopo auctions. Non-registered users can also participate in the auctions by phone. However, only registered users can use the full functionality of “My Swoopo”, in particular the BidButler and the other Swoopo options. Swoopo recommends that all users register online.
Swoopo’s products and services are offered exclusively to private users and not to commercial or partly-commercial resellers. Swoopo reserves the right to exclude commercial resellers and bidding collaborators from the participation in the auctions and to close their user accounts at any time.
Each user may register only once using their postal address (registration using PO Boxes or equivalents is not permitted). Additionally, only one user registration per household is permitted. During the registration process, the user must choose a username. The username must not be offensive, be selected to deceive or mis-inform other users, may not offend common decency or infringe upon the rights of third parties. If Swoopo discovers or receives information of a username which is illegal or in breach of these Terms, this username can be amended by Swoopo without prior notice. The corresponding user password is to be kept secret by the user. User accounts including any Bid accruals on them are non-transferable. The user account may be used only by the user and not by anyone else. Any abuse of the user account, be it to the detriment of third parties or to the detriment of Swoopo, shall result in the disqualification of the user and the reporting of a crime. In general, the user shall be liable for all activities that are undertaken using the user account together with the associated password.
Swoopo reserves the right to temporarily or permanently disqualify a user, or disable their account. Without limiting other remedies, we may limit, suspend, or terminate our Service and user accounts, prohibit access to our sites and their content, services, and 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 spirit of our policies. Users will be disqualified when in the reasonable opinion of Swoopo, a member has violated the laws or the rights of third parties. A user will be disqualified if such action will protect the rights of other users, or to prevent unauthorised manipulation or use of Swoopo. Examples of such unauthorised usage include (but are not limited to) non-payment of Bids, use of unauthorised third-party bidding software or set up of multiple user accounts by the same individual. In case of a breach of these terms by a user, Swoopo reserves the right to withhold deliveries or refunds for Bids. Swoopo also reserves the right to make a reasonable administration charge deductible for unused Bids at its discretion.
Furthermore, Swoopo reserves the right to limit the number of auctions a user may participate in or win at its own discretion.
3. Bid Purchasing for Online Bidding / Payment / FreeBids
Bidding rights, so-called “Bids”, must be purchased and paid for by users prior to online bidding. Bids can be purchased in packages (so-called “BidPacks”) at the currently applicable prices, which can be viewed in “My Swoopo” under “Buy Bids”. Payment can be made by credit/debit card or via payment agents such as PayPal.
Should a payment not be honoured by a user, a returned payment fee will be charged. The user will be responsible for these fees. Swoopo reserves the right to block access to the user’s account until payment in full of the invoice amount, including any fees due to returned payment etc., and to withhold any outstanding deliveries until payment is received in full.
Certain Bids (e.g. "FreeBids") are valid only for a limited time. Upon expiration of the time stated, the Bids expire and can no longer be placed. Only purchased Bids are eligible for a refund. FreeBids, Bids won in an auction, Bids received as compensation or Bids already placed in an auction and expired Bids are not refundable.
4. Bidding / Use of the BidButler
Users can bid in two ways online as further described under Bidding in the “Help” section. Bids can be placed by clicking on the relevant “Bid” buttons, or can be placed automatically by a BidButler. Once a bid is placed, it is deducted from the user’s Bid account and non-refundable.
Non-registered users can only bid in auctions by calling the premium-rate phone number provided and by entering the corresponding auction number. The costs for the Bids are invoiced to the user via the telephone provider. Prices on phone networks may vary, and calls from mobile phones may be considerably higher. Please check with your network provider before bidding. As telephone bidders can only be identified by their phone number, Swoopo will not accept telephone Bids from withheld numbers.
The BidButler assists bidders in being able to bid on an auction even if they are not online at that time. Only registered users can submit Bids automatically with one or more BidButlers. The BidButler automatically submits Bids according to the specifications set in advance by the user. The user can read about how the BidButler operates in the “Help” section. The user is prohibited from using bidding software not authorised by Swoopo, and doing so will result in immediate disqualification and non-delivery of any items won (see clause 2: Eligibility and the Acceptable Use Policy).
5. How the Auctions Work / Swoop it Now
With each bid placed, either online or by phone, the price of the item on which the user is bidding increases by the amount specified (for instance by 7p or 1p during “Penny-Auctions”). A bid submitted by the user constitutes an offer from that user to Swoopo to enter into a binding contract to purchase the item. A contract to purchase the item does not come into effect until the auction is finished and the last bidder has followed all the steps in clause number 6.
Each new bid resets the ‘remaining time’ for an auction up to, but not above, the displayed countdown reset value displayed in the small clock face next to the auction timer (usually, 10, 15 or 20 seconds). The one exception to this rule is when two BidButlers bid against one another. For more information, please consult the ‘Help’ section. The auction ends when the remaining time reaches zero. The user who was the last to bid then wins the auction. All other Bids on the item expire and will not be refunded. The last bidder is determined based on the records in Swoopo's database and Swoopo's decision regarding who is the last bidder shall be final (save in the case of manifest error).
Some auctions offer the “Swoop it Now” option, where the users can offer to purchase the product during live auctions and up to 24 hours after the auction has ended. When a bidder clicks on the “buy now” button, the user submits an offer to buy the product for the personalised purchase pricei (“personalised price”). This personalised price is based on the user's number of Bids placed on the auction and the percentage discount rate available for that particular product. Freebids, Auctioned Bids and Bids submitted by telephone do not count towards the personalised price. After making their offer to buy the product with the Swoop it Now option the user may no longer participate in that particular auction. The final total personalised price (together with any delivery costs) must be paid in full by the user within 14 days of the Swoop it Now option being exercised. As stated previously if payment is not received within this time, Swoopo shall treat the offer to purchase as withdrawn. Refunds will not be issued for Bids placed in an auction or delivery costs.
Swoopo will then issue users with an order number in an email. Users acknowledge that by placing an order they are making an offer to Swoopo to purchase the product under these General Terms and Conditions. Swoopo may or may not accept the offer at its discretion and the issue of an order number is for the reference only and does not constitute Swoopo's acceptance of such order.
Swoopo will accept an order from a user only once Swoopo has despatched the relevant products. If for any reason, Swoopo cannot accept an order we will attempt to contact users either by email or by telephone as quickly as possible,
Swoopo will make every effort to supply users with the products users have offered to purchase but there may be occasions where Swoopo is unable to supply products because, for example, the products are no longer being manufactured or readily available; or Swoopo cannot source relevant components and parts for the products; or there was a pricing error on the website. In such circumstances, Swoopo will contact you to inform you of this as quickly as possible and Swoopo may suggest alternative products that users may wish to purchase. If users do not wish to purchase these alternative products, then the order will be cancelled and Swoopo will endeavour to refund to users any money already paid to Swoopo in respect of these products as quickly as possible. Repayment of those monies will be the extent of Swoopo's liability to users if Swoopo are unable to deliver to users the products users have ordered.
Users acknowledge that all information contained on the Swoopo website and in all advertising and other materials constitute an invitation to treat to them. This information does not constitute an offer by Swoopo to supply any product to you.
6. Payment for successful Bids
After an auction has ended, the last bidder (“winner”) must go to “My Swoopo”. Here, information such as total price (including VAT and shipping costs) and payment options will be displayed. The user must actively confirm and pay the total price (end price plus shipping costs) for the win by following the steps indicated on that page or elsewhere on the website. Once the winner has clicked on the confirmation button they have made a bidding offer to pay the price.
A user should confirm the auction win and pay the total price within 7 days. If an auction win has not been confirmed and paid within 21 days of the auction end date, unless there are exceptional circumstances Swoopo reserves the right to not to accept the offer to conclude a contract and the winner’s right to pay for and receive delivery of an item will be permanently revoked. In this instance, the Bids placed in that auction are non-refundable. The user must pay the total price when confirming the win. After confirming the win and paying the amount due, the winner will receive a confirmation e-mail.
Telephone bidders will be contacted by phone in the event that they win and they do not get in touch with the Customer Service Team by email. When getting in touch to claim telephone wins users must provide the full telephone number that they used to win the auction in question (see clause 4).
The item will not be sent to the user until the total price has been paid to Swoopo and the winner acknowledges that there is no binding contract between the winner and Swoopo until Swoopo has despatched the item. A similar requirement for delivery is that all Bids purchased and used by the user have been properly paid for. Should Bids that have already been purchased and used not have been paid for, payments received shall be viewed as payment toward the Bids not yet paid for, and we reserve the right to retain the item purchased at auction until all Bids and the total price have been paid for in full.
An invoice containing the auction price and shipping costs will be sent to the user by Swoopo once delivery has been arranged.
7. Returns and Cancellations
Swoopo grants winners the right to cancel an order. This right is unconditional and begins from the moment the contract is concluded. If a user cancels a contract to which the cancellation provisions apply they are entitled to a refund of the auction end price they have paid in relation to the contract even if the goods are not defective in any way. These cancellation rights end fourteen days after the day on which a winner received the goods
An exception to the right to cancel is audio or video recordings or computer software that the customer has unsealed. These items are not eligible for return or refund, unless the item is faulty or not as described.
If a user wishes to cancel the contract, they must inform Swoopo in writing (by letter or email), that they want to cancel within the time period noted above. Cancellations by phone will not be accepted.
The following contact details must be used:
Entertainment Shopping AG
77 Oxford Street
London
W1D 2ES
E-Mail:mailto:support@swoopo.co.uk
In order to complete a valid cancellation or return, a user must return the received product or products in good condition, such as might be expected from a typical 'display item' in a retail store. Costs of postage for returns will be met by the user (unless goods are found to be faulty). If the user is unable to return the service or product received or only able to return it in part or only in a depreciated condition, he will have to pay compensation to us the amount refundable will be reduced proportionally, as applicable.
Should Swoopo incur additional costs for insufficient postage on the return or for courier shipments and other irregular shipping methods that are over and above postal shipping costs, these costs will be deducted from any payment made by the customer. Sets/boxes can only be returned in their entirety.
8. Delivery
Unless otherwise stated, delivery will be made directly from our suppliers or from our warehouse to the address provided by the user. Deliveries are made solely within the UK (exclusively on the mainland, Isle of Wight and Northern Ireland, excluding the Channel Islands, the Isle of Man, the Scilly Isles, Scottish Islands, the Republic of Ireland or BFPO addresses) Delivery times vary and any delivery time indicated is provided only as a guide and is not guaranteed. Swoopo shall be entitled to involve third parties to satisfy its contractual obligations without being required to notify the buyer. Obvious damage to the item from transport or packaging damaged during transport is to be reported to Swoopo upon taking delivery.
Should Swoopo not be able to deliver the item ordered, Swoopo shall be entitled to substitute the item with a comparable replacement product with the similar or better features, or provide a refund if this is the user’s preference. The user’s statutory rights are not affected.
9. Offsetting / Withholding Payment / Retention of Title
The user shall only have the right to reduce any sums that they may owe to Swoopo if he or she has a claim against Swoopo that Swoopo does not dispute.
The user is not entitled by reason of any alleged minor defect to withhold more than a proportionate amount of the sum due.
The item delivered shall remain Swoopo’s property until payment is received in full of the total price, including for the Bids used in the auction. Until such time as payment has been made in full the user undertakes to store the item separately from their other possessions.
10. Damages / Reimbursement of Expenses / Limits on Liability
These General Terms and Conditions set out the full extent of Swoopo’s obligations and liabilities in respect of the supply of the services and supply of any products to users. Save as set out below at the end of this paragraph 10, there are no warranties, conditions or other terms that are binding on Swoopo with regard to the supply of products or the provision of services. All warranties, conditions and other terms arising out of or in connection with the supply of products and/or the provision of services which might otherwise be implied into or incorporated any contract between Swoopo and users (including without limitation any implied terms as to quality, fitness for purpose, or reasonable case and skill) are expressly excluded to the maximum extent permitted by law. In particular, Swoopo undertakes no responsibility for ensuring that any products that users may purchase are suitable for users’ purposes.
Users acknowledge that save as provided for below Swoopo’s sole obligation under these General Terms and Conditions is to refund the amount actually paid by users in respect of any products which they have offered to purchase or for which they have made successful Bids. But this limitation does not affect users’ statutory rights as consumers nor users’ rights to return the products as provided for in clause 7.
Swoopo shall not be liable to the user for:
- any indirect, special or consequential loss or damage; or
- loss of data or other equipment or property; or
- economic loss or damage; or
- incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
- any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill,
even if Swoopo is advised in advance of the possibility of any such losses or damages.
In particular, Swoopo shall not be liable for any of the errors provided for in clause 5, faulty operation of telephones or computers during bid placement and for incorrect or overly slow transmission of bidding data by the telephone or internet provider (including but not limited to those specified in condition 12 below). Should such an event occur, the bidder shall have no legal right to the purchase or receipt of an item.
Swoopo shall not be liable for any losses arising from the user’s subsequent use or misuse of the item including (without limitation):
- fair wear and tear;
- willful damage; and
- the user’s negligence or any failure to follow Swoopo’s instructions as to placing of the Bids.
Liability for damage arising from loss of life and limb, health, or well-being, as well as that according to product liability shall not be affected. These terms and conditions shall not affect a user’s statutory rights regarding the return of defective goods and claims in respect of losses caused by any negligence on the part of Swoopo.
Save in relation to the circumstances outlined in the second paragraph of this clause 10, Swoopo’s total liability in contract, tort (including negligence), misrepresentation or otherwise in relation to these General Terms and Conditions shall be limited to £50,000.
11. Guarantee
Items offered for auction are provided as fit for purpose. If goods develop a fault within six months of being sold, the goods may be returned for a refund or replacement at Swoopo’s expense.
Swoopo will take all reasonable care to ensure that details, descriptions and prices of products which are featured on its website are correct at the time when the relevant information was entered onto the system. Swoopo shall use its reasonable endeavours to keep the website as up to date and accurate as possible but can offer no guarantees that the information including prices and descriptions of products on the website is accurate when a user visits the website and/or Bids for products.
Images of products may differ from the original.
12. System Outage / Circumstances beyond our reasonable control
A system outage has occurred if no Bids can be submitted for items due to an unforeseeable disruption in a system. In such a case, auctions will be temporarily halted and the remaining times for the auctions, the current bidding price and the current highest bidder will be maintained. After the disruption has been resolved, the auctions will be continued and a minimum of 10 minutes will be added to the remaining times for the auctions. Temporarily halted auctions are clearly indicated. Bidders who are bidding on temporarily halted auctions shall have no right to a refund for Bids used or other costs incurred.
With the currently available technology, it is not possible to develop and operate computer programs (software) and data processing systems (hardware) and upload material onto or process such material on the website completely without errors, or to rule out any unpredictable events in connection with the internet (hereinafter referred to collectively as “technical faults”). Swoopo, therefore, provides no guarantee for the constant, uninterrupted and accurate availability of its website and technical systems. In addition, but not subject to, the provisions of clause number 10, Swoopo shall not be liable for any damage whatsoever incurred by auction users or third parties from using Swoopo’s services. In particular, Swoopo shall not be liable for damage that occurs due to Bids submitted by auction users not being received by Swoopo or not being received promptly or not being considered, as a consequence of technical faults.
13. Applicable Law / Severability Clause
English law shall apply and shall exclude application of the UN Convention on the International Sale of Goods.
To the extent legally permitted, the place of jurisdiction is the courts of England and Wales.
14. Protection of Data: Collection, Processing, and Use of our Customers’ Personal Information
The protection of your data is very important to us.
For more information on the collection, processing, and use of personal data, please read our Data Protection Statement.
15. External Links
Our website may contain links to other websites operated by third parties, and these sites may likewise contain links to other websites. Despite conducting careful checks, we assume no liability for the content of external links. The operators of the sites linked to and from this site are solely responsible for their contents. We hereby expressly distance ourselves from all content of any and all websites linked to the Swoopo website. We cannot take any responsibility for the content of the data protection and privacy guidelines of third-party websites.
16. General
The contract between Swoopo and users is binding on the parties and on their respective successors and assigns. The user may not transfer, assign, charge or otherwise dispose of any contract formed under these General Terms and Conditions or any of their rights or obligations without Swoopo’s prior written consent.
Swoopo has the right to revise and amend these General Terms and Conditions from time to time in its absolute discretion but for reasons including but not limited to changes in market conditions affecting Swoopo’s business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in Swoopo’s system capabilities. All users will be subject to the policies and terms and conditions in force at the time that they have successfully bid for items listed on the Swoopo website, unless any change to such policies or terms and conditions is required to be made by law or governmental authority or Swoopo notifies its users of the changes to such policies or General Terms and Conditions before Swoopo sends information relating to dispatch (in which case Swoopo has the right to assume that all successful winners have accepted the changes to the terms and conditions unless notified to the contrary with 7 working days by the user of the items).
Swoopo is the owner or licensee of all intellectual property rights on the Swoopo website and the material published on it. Those works are protected by copyright laws and treaties around the world and all rights relating to the same are reserved. Users may print one copy and may download extracts of pages for personal reference only. Users may not modify any paper or digital copies of any materials printed or downloaded. Users must also not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. Users must not use any part of the materials on the Swoopo website for commercial purposes.
Note:
We would like to advise all users to monitor their bidding practices. Buying Bids online at www.Swoopo.co.uk or dialling premium rate phone numbers frequently or repeatedly can incur high costs. Users should therefore pay attention to their bidding practices and check their telephone charges regularly. It is also possible to have premium rate numbers blocked by certain network operators, please contact yours for more information.
