EFFECTIVE DATE: October 9, 2014
1. ACCEPTANCE OF TERMS OF SERVICE
Acceptance of Terms.
By accessing or using the Site or Services you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by its Terms. This Agreement governs the acceptable use of the Services and content accessed through the Site, and your rights, obligations and restrictions regarding your use of the Services.
Updates to Terms.
SM reserves the right to update or change these Terms at any time by posting the most current version of the Terms on the Site with a new Effective Date shown. All such changes in the Terms shall be effective from the Effective Date. Your continued use of the Site after we post any changes to the Terms signifies your agreement to any such changes. If you do not agree to these Terms, you must discontinue using the Site and/or Services.
By accessing or using the Site or Services you consent to having this Agreement provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal mail, e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
When you provide us with contact information in connection with a particular activity or product or otherwise when using our Services, including an email address or telephone number in connection with that activity, product or service, you agree that this action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent and you attest that you have the legal authority over any contact information provided to us, including your mobile or other telephone number, and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), or any other means of communication that your wireless or other telecommunications device may be capable of receiving). Please keep contact information up to date: you are solely responsible for any contact information you provide to us.
2. SITE AND SERVICES ARE FOR PERSONAL USE
The content offered on the Site (“Content”) and the Services offered are intended for your personal, noncommercial use in accordance with these Terms. You agree that you will not, unless specifically permitted by us (i) copy, display or distribute any part of the Content or Site, in any medium, without SM’s prior written consent, or (ii) alter or modify any part of the Site other than as may be reasonably necessary to use the Site for its intended purpose. You further agree that you will not use any automated devices, such as spiders, robots or data mining techniques to catalog, download, store or otherwise reproduce, store or distribute Content or to manipulate the Site or Services. You will take no action to interfere with, interrupt, destroy or limit the functionality of the Site or any computer software or hardware or telecommunications equipment. You may not use the Site or Services in any manner that could damage, disable, overburden, or impair any SM server, or the networks connected to any SM server, or interfere with any other party’s use and enjoyment of any Site or Services. You may not attempt to gain unauthorized access to any Site or Services, other accounts, computer systems or networks connected to any SM server or to any of the Site or Services, through hacking, cracking, distribution of counterfeit software, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site or Services. You may not reverse engineer, decompile or disassemble any software accessed through Site or Services, including any proprietary communications protocol used by SM.
3. PROPRIETARY RIGHTS
The Services and all material published on the Site, including, but not limited to text, photographs, video, text, graphics, music, images, animations, audio, text, software, sounds, messages, comments, ratings, and other materials on the Site and all trademarks, service marks and logos is owned by SM or its licensors (collectively, the “Content”), and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. SM owns a copyright in the selection, coordination, arrangement and enhancement of such Content. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any of the Content, in whole or in part, without SM’s prior written consent. You acknowledge that you do not acquire any ownership rights in any Content. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of SM without express written consent. Except for allowing you to use the Site and Service for your personal use as set forth in the paragraph above, when you use the Site or Service, you are not receiving a license or any other rights from SM, including intellectual property or other proprietary rights of SM. You understand that you have no rights to the Site or Services or any other SM property except as we indicate in these Terms.
4. LEGAL NOTICES
Disclaimer of Warranties.
YOU UNDERSTAND THAT YOUR USE OF THE SITE AND SERVICES (INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE YOU EXPERIENCE FROM USING SITE AND SERVICES) IS AT YOUR SOLE RISK. YOU UNDERSTAND THAT THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” “WHERE-IS” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU. YOU ACKNOWLEDGE THAT SM MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS CONTAINED IN THE SITE OR SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE AND SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, SM DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SITE AND SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SM, OR ITS AFFILIATES OR AGENTS, BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SITE OR THE SERVICES, EVEN IF SM HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN SM’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED $25. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
5. OTHER IMPORTANT TERMS
Availability and Use Outside of the United States.
The Site and Services are controlled from facilities in the United States. SM makes no representations that the Site or Services are appropriate or available for use in other locations. Those who access or use the Site and/or Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
We are a general purpose Site. You represent and warrant that you are at least eighteen (18) years old and that you possess the legal right and ability to enter into this Agreement and to use the Site and Services in accordance with these Terms. If we have any reason to believe you are not 18 or older we may terminate your access to the Site or Services.
You may be able to access other websites or resources through links on the Site. Because SM has no control over such sites and resources, you acknowledge and agree SM is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials or available from such sites or resources nor does SM endorse any such sites or the products or services assessable on such sites. You further acknowledge and agree that SM shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
No Third Party Beneficiaries.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
These Terms shall be governed by and construed in accordance with the laws of the State of New York without application of conflict of laws rules. Exclusive jurisdiction and venue in connection with any dispute between you and SM (‘Dispute”) shall lie in the state or federal courts located in New York County, New York. You hereby waive any right you might have to resolve any Dispute on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public or other persons similarly situated. Any cause of action you may have with respect to SM, the Services, the Content or the Site must be commenced within one year after the claim or cause of action arises or such claim or cause of action shall be barred.
These Terms and policies incorporated herein (“Policies”), are the entire agreement between you and SM. They supersede any and all prior or contemporaneous agreements between you and SM relating to your use of the Site or the Services. SM may assign these Terms in whole or in part, at any time. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in these Terms are for convenience of reference only and shall not affect the interpretation or construction of these Terms. The failure of SM to partially or fully exercise any rights or the waiver of SM of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by SM or be deemed a waiver by SM of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of SM under these Terms, its Policies and any other applicable agreement between you and SM shall be cumulative, and the exercise of any such right or remedy shall not limit SM’s right to exercise any other right or remedy.
7. CONTACT US
Please contact us with any questions by emailing us at:
firstname.lastname@example.org or writing to us at SM, P.O. Box 251-H, Scarsdale, N.Y. 10583.
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