Last Updated: August 7, 2015
Welcome to TypeEngine, which is operated by The Smyth Group, Inc. (“Company”, “we”, “us” or “our”). Please read the following Terms of Service (“Agreement”) carefully, as it governs your use of (a) the website located at typeengine.net and all corresponding web pages associated with the aforementioned URL (“Site”) and (b) any media, content, information, web-based applications, platforms, features, functions, consoles and services offered by us through the Site (the “Services”). This Agreement applies regardless of the type of device from which you are accessing the Services, including, but not limited to a wireless or mobile device, personal computer, laptop, tablet, television or any other technology or device (“Device”). Unless stated otherwise and with specificity, this Agreement does not govern any websites, media, information, web-based applications, platforms, features, functions, consoles and services or content made available by any other company or third party.
All users of the Services are subject to this agreement regardless of whether or not you have registered for use of certain Services. By using the Services you agree to comply with this agreement and any additional terms and conditions set forth with respect to your access to and use of the Services, including, but not limited to (a) the general pricing terms (“Pricing Terms”) set forth on typeengine.net and when applicable, to any business account pricing terms (“Business Account Terms”) otherwise set forth by Company.
Subject to the terms set forth in this Agreement, the Services shall enable users that have registered on the Site to develop mobile applications incorporating Registered User Materials (as defined herein) (“Publications”) for purposes of distributing and making same available for download via Apple’s App Store and/or other third party owned and/or operated platforms (each, a “Marketplace”). The Services shall also include application hosting, distribution, sales, maintenance, support and other related services, all as described in further detail herein and all subject to the terms and conditions hereof.
We may modify this Agreement from time to time and at any time in our sole
discretion. We will post or display notices of material changes on the Services and/or notify you via other electronic means. The form of such notice is at our discretion. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
If you are using the Services, in whole or in part, on behalf of any business, publisher, organization or other third party (each, an “Obligor”), then you hereby represent and warrant that (a) you have the full right, power and authority to enter into this Agreement on behalf of the Obligor and to create a legal, valid and binding obligation on Obligor enforceable against Obligor in accordance the terms hereof; (b) all corporate, organizational and other proceedings required to be taken by Obligor to authorize your agreement to, and performance under, this Agreement have been taken and all necessary licenses, authorizations, permits, consents and approvals required have been obtained; and (c) your use of the Services on behalf of the Obligor does not and shall not violate any applicable law, rule or regulation or require any additional consent or other action by any other person or entity. IN THE EVENT YOU ARE USING THE SERVICES, IN WHOLE OR IN PART, ON BEHALF OF AN OBLIGOR, THE TERMS “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL MEAN, COLLECTIVELY, YOU AND THE OBLIGOR, AND THIS AGREEMENT SHALL BE, JOINTLY AND SEVERALLY, BINDING UPON AND ENFORCEABLE AGAINST YOU AND THE OBLIGOR FOR ALL PURPOSES HEREUNDER.
In order to access and use certain Services, we may require that you register for the applicable Services, whether on the Site, the TypeEngine Preview App, a Marketplace, third party application or website or otherwise, including, in some instances, creating and/or providing a unique username and password combination (“User Identification”) and provide certain additional information, which may include, without limitation, your email address, legal name, date of birth, country of residence, zip code, your physical address, telephone number(s), applicable payment data and related information (collectively, a “User Account”). You represent and warrant that all registration and account information you submit is truthful and accurate and you shall maintain and promptly update the accuracy of such information. If you elect to become a registered user of the Services, you are responsible for maintaining the confidentiality of your User Identification, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Identification, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent. You agree to immediately notify Company of any unauthorized use of your User Identification or User Account, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your User Identification and User Account, (b) update, maintain and control access to your User Identification and User Account, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any user of the Services for any reason, including, without limitation, if we believe there is a question about the identity of the person trying to access any account or element of the Services. Company shall not be responsible or liable for any loss or damage arising from your failure to comply with this Article 6.
7. User Account Termination.
You are solely responsible for properly canceling your User Account and all User Account cancellation requests must be submitted to Company in writing to firstname.lastname@example.org. Cancellation requests provided by phone, physical mail or other means, or sent to any other Company email address or electronic contact, will not be honored. Upon Company’s receipt of your cancellation request in accordance with the terms hereof, Company shall terminate and deactivate your account within a reasonable time thereafter (i.e., within a period of about 30 days), which shall include the permanent removal of all of your materials, content and information, including, without limitation, Registered User Materials and Publications (each as defined herein), from the Services and any Marketplaces (as defined herein) (collectively, “User Content”), subject to Marketplace Operator requirements, terms and conditions, third party response and performance times, legal requirements and the advice of legal counsel. Upon any cancellation or termination of your User Account, whether by Company or you, no refunds, reimbursements or credits of any kind shall provided as described in Section 9.4 herein.
8. Publications.8.1 Submission to Marketplace Operators; Designation as Agent.
All Publications properly submitted via the Services shall be subject to the review and approval by the third party owner and/or operator of the applicable Marketplace (each, an “Marketplace Operator”) prior to same being made available for distribution and/or sale via the applicable Marketplace. The foregoing approval process shall include, without limitation, review of the content, features, functionality, and other aspects of the Publication and Company shall submit your Publication to the applicable Marketplace Operator within a reasonable time following your submission and approval of same via the Services. You hereby acknowledge and agree that, upon your submission of a Publication in accordance with the terms and conditions hereof, the relationship between you and the Company shall be that of principal and agent, or principal and commissionaire, respectively, and that you, as principal, are, and shall be, solely responsible for any and all claims and liabilities involving or relating to, the Publication and Registered User Materials (as defined herein) incorporated or made available therein. Further, you acknowledge and agree that your appointment of Company as your agent or commissionaire, as the case may be, is non-exclusive.
In the event that a Publication is rejected by a Marketplace Operator, we will notify you and provide you with relevant information (if any) received from the Marketplace Operator regarding the reason(s) for rejection. Thereafter, you will have the opportunity to make modifications to the Registered User Materials (as defined herein) used in connection with the creation of the Publication for purposes of attempting to obtain Marketplace Operator approval and we will resubmit your Publication to any applicable Marketplace Operator for an additional fee, as set forth in the Pricing Terms. In the event your Publication is rejected for a second time by the same Marketplace Operator, we will notify you and provide you with relevant information (if any) received from the Marketplace Operator regarding the reason(s) for rejection; provided, however, that we will not resubmit your Publication a third time.
8.3 NO GUARANTEE.
YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING REVIEW AND APPROVAL PROCESS REMAINS ENTIRELY OUTSIDE THE CONTROL OF COMPANY, AND COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES (A) REGARDING ANY APPLICABLE (I) REVIEW, APPROVAL OR RESPONSE TIMES, (II) DESIGN, DEVELOPMENT OR FUNCTIONAL PARAMETERS, OR (III) ANY OTHER REQUIREMENTS OR CRITERIA PROMULGATED BY MARKETPLACE OPERATORS IN CONNECTION WITH THE REVIEW AND APPROVAL OF PUBLICATIONS; (B) THAT ANY PUBLICATION WILL BE ACCEPTED, APPROVED OR MADE AVAILABLE BY ANY MARKETPLACE OPERTOR ON ANY MARKETPLACE OR (C) THAT ANY PUBLICATION PREVIOUSLY APPROVED WILL NOT BE SUBSEQUENTLY DISAPPROVED, REJECTED AND/OR OTHERWISE REMOVED FROM THE APPLICABLE MARKETPLACE. FURTHER, COMPANY RESERVES THE RIGHT AT ANY TIME AND FOR ANY REASON TO MODIFY, LIMIT, DISCONTINUE, REMOVE OR DISABLE ACCESS TO ANY PUBLICATION AND/OR ANY SERVICES WITHOUT NOTICE OR OTHER OBLIGATION TO YOU OR ANY THIRD PARTY AND COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD IT EXERCISE SUCH RIGHTS.
From time to time, Company may make available updates, upgrades, additional functionality and/or add-ons in connection with Publications, whether as part of the Site and the corresponding Services, or via software download or other means made available via the applicable Marketplace or Marketplace Operator (each, an “Update”). Some Updates shall be made available at no additional cost to you, and other Updates shall be offered at an additional fee, as more fully described in the Pricing Terms. Some Updates may occur automatically without the need for any act on your part, but may require the applicable end user of the Publication to manually download an Update via the Marketplace through which the Publication was originally downloaded. Certain functions of the Publication may be modified or discontinued as a result of any such Updates, or may not be available to the applicable end user if such individual has not downloaded the required Updates made available by Company, the Marketplace Operator or otherwise. Company reserves the right to update, supplement, limit, modify, or discontinue, any or all functionality contained within any Publication at any time and for any reason without notice or other obligation to you or any third party and Company shall not be liable to you or any third party should it exercise such rights.
8.5 No End User Support.
In order to download, access and use the Publications, end users of the Marketplace will be required to use Device(s) and other technology meeting certain system, configuration and other requirements established by Marketplace Operators, and Company shall have no responsibility in connection with providing any technical, billing or other customer support to end users of the Publications.
8.6 Company Data.
8.7 Company Branding.
Company reserves the right, in its sole discretion, to include within each Publication certain branding and promotion materials related to Company and the Services, all as determined by Company in its sole discretion.
8.8 Compilation Application.
Company reserves the right, in its sole discretion, to include any Issues (as defined herein) and/or any other content made available by you via any Publication in separate, Company-owned, controlled and programmed applications (collectively, “Compilation Application”) for purposes of distributing and making same available for download and/or purchase by end users through one or more Marketplaces. Any revenue actually received by the applicable Marketplace Operator of any such Marketplaces from sales of your Issues via the Compilation Application shall be subject to administration and remittance, as applicable, pursuant to the terms and conditions of Article 10.
8.9 DATA COLLECTION DISCLAIMER.
9. Payment Requirements and Terms.9.1 Requirements.
The fees and charges for the Services are set forth on the Pricing Terms and you hereby agree to pay in full the prices and fees (including, without limitation, all applicable taxes) for any purchases that are made using your User Account(s) via a payment method acceptable to Company, in its sole discretion, at the time of purchase. If payment is not received by us from your credit or debit card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us. Company and its designees reserve the right to change any and all prices and fees for use of the Services and other products and services at any time, for any reason, without notice to you.
9.2 Payment Method.
The Site accepts certain debit and credit cards as described on the Site as forms of payment, subject to certain restrictions, including, without limitation, territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your purchase. If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another card. If a payment card company is being used for a transaction, Company may obtain a pre-approval from the applicable payment card company for an amount up to the amount of the order. All purchases of products and services through the Services are final once you click the “Confirm” button and billing to your payment card occurs at such time or shortly thereafter.
You are responsible for any taxes imposed on any fee-based transactions conducted on or in connection with the Services and applicable taxes may be added to the amount charged for the applicable transaction on the Site. Fee-based transactions on the Site may include, without limitation, sales tax, use tax and any other applicable taxes, which may be based on various factors, including, without limitation, the bill-to address and tax rates in effect at the time your transaction is completed. No users of the Services are eligible for tax exemptions for transactions made on the Site.
9.4 No Refunds or Credits.
Except as specifically set forth herein and as determined by Company in its sole and absolution discretion in every instance, all fees, charges and other amounts paid for, or in connection with, the Services are nonrefundable and Company shall in no event provide any refunds, reimbursements or credits of any kind for any reason, including, without limitation, in connection with Company Fees (each as defined herein), Upgrades, partial or unused services, or any other product or service, in whole or in part.
9.5 Electronic Signature and Contracts.
Your use of the Services includes the ability to enter into agreements and/or to make purchases electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and to promptly pay for all such purchases. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on the Service, including, without limitation and to the full extent allowed by law, notices of cancellation, policies, contracts, amendments and otherwise.
10. Company Fees and Recurring Billing.10.1 Company Fees.
Upon Company’s receipt of the Marketplace reporting information, Company shall deduct the Company Fees for use of the Services, as more fully described on the Pricing Terms or when applicable, the Business Account Terms.
10.2 Recurring Billing.
Unless you otherwise modify your User Account settings as described below, you understand and agree that we will automatically charge you (via the payment card on file in your User Account) and you agree to pay the Company Fees until such time that you direct us to stop or until we decide to stop, whichever comes first. Therefore, if you decide to cancel this automatic billing feature, you must log in to the account settings portion of the Site (e.g., “My Account”), and click on “Cancel recurring billing” (or similar). In the event we cannot successfully charge your payment card, we reserve the right to immediately terminate your access to, and use of, the Services, without notice or other obligation or liability to you or any third party.
11. Publication and Issue Sales.
You acknowledge that in the event you elect to offer for sale to end users (a) any Publications and/or (b) any Issues within any Publications, the revenue actually received by you shall be subject to deduction by the applicable Marketplace Operator, including, without limitation, in the form of Marketplace Operator commissions, taxes and other deductions. You further acknowledge that Company makes no representations or warranties as to earnings or potential earnings with respect to sale any Publications to end users nor with respect to the financial relationship established by you and any Marketplace Operator.
11.2 THIRD PARTY DISCLAIMER.
12. Registered User Materials.12.1 General.
The Services will provide you with the opportunity to submit, upload, transmit, display or otherwise make available text, photos, graphics, images, audio/visual content, trademarks, logos, materials, Issues and information via the Services for use in connection with the creation, distribution, promotion and/or sale of Publications, and any other features and functionality available on or in connection with the Site (collectively, “Registered User Materials”). When you submit Registered User Materials you may also be asked to provide information about your submission, which may include, without limitation, such things as your User Identification, descriptive information about the Registered User Materials, and/or similar information. By submitting Registered User Materials, you acknowledge and agree that the term “Registered User Material” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to your Registered User Material.
YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR THE CONSEQUENCES OF ALL REGISTERED USER MATERIALS THAT YOU SUBMIT, UPLOAD, DISPLAY, TRANSMIT OR OTHERWISE MAKE AVAILABLE. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE IN ANY WAY FOR REGISTERED USER MATERIALS, INCLUDING, WITHOUT LIMITATION, ERRORS OR OMISSIONS IN ANY REGISTERED USER MATERIALS (OR THE USE THEREOF), OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY REGISTERED USER MATERIALS SUBMITTED, UPLOADED, DISPLAYED, TRANSMITTED OR OTHERWISE MADE AVAILABLE, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF SAME. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL REGISTERED USER MATERIALS MADE BY MEANS OF OR IN CONNECTION WITH ANY PORTION OF THE SERVICES SHALL BE MADE PUBLICLY AVAILABLE VIA THE SITE, THE SERVICES OR OTHER MARKETPLACE AND THAT YOU HAVE NO EXPECTATION OF PRIVACY IN ANY USER MATERIAL. FURTHER, REGISTERED USER MATERIALS DO NOT REFLECT THE VIEWS OF COMPANY OR ITS AFFILIATES, AND YOU UNDERSTAND THAT BY USING THE SERVICES, YOU MAY BE EXPOSED TO OTHER PEOPLE’S REGISTERED USER MATERIALS THAT COULD BE OFFENSIVE, INDECENT OR OBJECTIONABLE AND, AS SUCH, COMPANY DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF ANY REGISTERED USER MATERIALS.
12.3 Retention of Rights; Representations and Warranties.
COMPANY DOES NOT ACQUIRE ANY TITLE OR OWNERSHIP RIGHTS IN THE REGISTERED USER MATERIALS THAT YOU SUBMIT AND/OR MAKE AVAILABLE VIA SERVICES. After you submit, upload, transmit, display or otherwise make available any User Material, you continue to retain any such rights that you may have in such User Material, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the Registered User Materials or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, transmission, display and/or making available of Registered User Materials does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your Registered User Materials.
12.4 Grant of License
In connection with all Registered User Materials you submit, upload, transmit, display or otherwise make available on, through or in connection with the Services or any Publication (including any trademarks, service marks, trade names and/or logos related thereto), you grant to Company a worldwide, non-exclusive, perpetual, sub-licensable, fully paid-up and royalty-free right and license to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, promote and otherwise exploit all or any portion of your Registered User Material for purposes of and in connection with (a) the provision of the Services, including, without limitation, serving as your agent in connection with the distribution, promotion and sale of Publications (including any content contained or made available therein) (e.g., Issues, etc.) and/or the Compilation Application via any Marketplaces, and (b) displaying, exhibiting, marketing and featuring same in connection with the promotion of Company, the Services and any other Company products and services (in each instance, without notification or other obligation to you or any third party).
12.5 Unauthorized User Material.
You may not submit, upload, transmit, display or otherwise make available, in any manner, any Registered User Material that we deem to be Unauthorized User Material (as defined herein). We have the right, but not the duty, to review any Registered User Material and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any Registered User Materials, including, without limitation, any Unauthorized Registered User Materials; provided, however, that Company shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized User Material” means any Registered User Material that (a) is or may be construed as violating this Agreement, (b) is deemed to be unacceptable to Company, as determined in Company’s sole discretion, or (c) violates the terms of Article 13.
13. Unauthorized User Conduct.
The use of the Services for unlawful or harmful activities is not allowed and you are solely responsible for your conduct in connection with the Services. You represent, warrant and agree that, while using the Services, you shall not: engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity; submit, upload, transmit, display or otherwise make available through the Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; submit, upload, transmit, display or otherwise make available through the Services any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity; engage in or encourage conduct that affects adversely or reflect negatively on Company, its affiliates, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Services, or from advertising or becoming a supplier to us in connection with the Services; submit, upload, transmit, display or otherwise make available through the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user; impersonate any person or entity or falsely state or otherwise represent your affiliation with a person or entity; forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services; solicit passwords or personal identifying information for unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information; or modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so.
Company assumes no responsibility for monitoring the Services for inappropriate content or conduct. If at any time Company chooses in its sole discretion to monitor the Services, Company nonetheless assumes no responsibility for Registered User Materials, assumes no obligation to modify or remove any Registered User Materials, and no responsibility for the conduct of any user. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates, or is suspected of violating, this Article 12, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that Company may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the legal process; (b) enforce this Agreement; (c) respond to claims that any content or information violates the rights of any third party; (d) respond to your requests for customer or technical service; or (e) protect the rights, property or personal safety of Company, users or any third parties.
14. Company Proprietary Rights.14.1 General; Retention of Rights.
As between you and Company, Company owns, solely and exclusively, all right, title and interest in and to the Services and all content, information and materials contained and/or made available through or in connection with the Services (excluding Registered User Materials) (“Company Content”), and all such Company Content is protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, rules, regulations and treaties. The term “Company Content” includes, without limitation, all audio/visual content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, application and other software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Company Content” as well.
14.2 Limitations and Restrictions on Use.
The Services are to be used solely for your non-exclusive, non-assignable, non-transferable and limited use and for no other purposes. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, including, without limitation, notices on any Company Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by Company and set forth in the Pricing Terms or when applicable, the Business Account Terms, you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website, platform or Marketplace), or otherwise use, any Company Content without the express, prior written consent of Company or its owner if Company is not the owner. Moreover, the framing or scraping of or in-line linking to the Services or any Company Content contained thereon and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Company Content made available on or through the Services other than as expressly authorized by us is prohibited. You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. Any unauthorized or prohibited use of any Company Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require users to respect our copyrights, trademarks, and other intellectual property rights and shall enforce same. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in Article 15 below.
15. Digital Millennium Copyright Act.
If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details): A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material; Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Smyth Group, Inc.
124 Columbia Heights
Brooklyn, NY 11201
16. Customer Support.
For assistance with technical issues or customer support inquiries in connection with the Services, please refer to our Support page or contact email@example.com.
17. Third Party Services and Content.
18. Personal Information.
From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our advertisers, sponsors, or other promotional partners (collectively, “Advertisers”) found on or through the Services or via a hyperlinked website or mobile web application. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
You agree to indemnify, defend and hold Company, its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, Marketplace Operators, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) your use of the Services, (b) your breach or violation this Agreement or (c) your Registered User Materials. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
21. DISCLAIMER AND LIMITATIONS OF LIABILITY.21.1 The Services are available “AS-IS”
THE SERVICES, AND ALL COMPANY CONTENT, PRODUCTS, SERVICES AND REGISTERED USER MATERIALS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, INCLUDING IN CONNECTION WITH ANY MARKETPLACE, MARKETPLACE OPERATOR OR THIRD PARTY PROCESSORS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THE SITE, AND ALL COMPANY CONTENT, PRODUCTS, SERVICES AND REGISTERED USER MATERIALS ARE HEREBY DISCLAIMED. FURTHER, COMPANY ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR ANY END USER CONDUCT IN CONNECTION WITH (A) THE DOWNLOAD, PURCHASE AND/OR USE OF ANY PUBLICATIONS, INCLUDING, WITHOUT LIMITATION, ANY USER CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, OR (B) ANY OTHER LOSS OR DAMAGE WHATSOEVER, IN EACH INSTANCE, RELATING TO OR IN CONNECTION WITH ANY END USER’S DOWNLOAD, PURCHASE AND/OR USE OF ANY PUBLICATIONS, INCLUDING, WITHOUT LIMITATION, ANY USER CONTENT AND/OR ANY OTHER END USER OR THIRD PARTY CONDUCT.
YOU FURTHER UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, MARKETPLACE OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
21.2 Limitation of Liability
Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, Registered User Materials and Company Content associated with your use of the Services. Furthermore, you understand and acknowledge the capacity of the Services, in the aggregate and for each user, is limited. Consequently, some messages and transmissions, including, without limitation, User Content, may not be processed in a timely fashion or at all, and some features or functions, including, without limitation, Updates, may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that Company assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or User Content or for any failure or delay associated with any User Content and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or User Content. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
The Services may contain links to third-party websites or resources. You acknowledge and agree that the Company is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Company of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
22. Force Majeure.
Company shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption in connection with any Service offered by Company or any third party resulting directly or indirectly from any cause beyond the reasonable control of Company, including, without limitation, an act of war or terrorism, failure of electricity supply, systems or connections, service interruptions, natural disaster, third party service provider failure or delay in performance, civil commotion, governmental action, labor dispute, act of God or other causes beyond the reasonable control of Company.
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by Company without restriction, notice or other obligation to you or any third party.
24. General Terms24.1 Waiver and Severability
The failure of Company to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
24.2 Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of New Jersey without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in Somerset County, New Jersey, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of New Jersey (excluding choice of law). No software made available in connection with the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
24.3 Entire Agreement.
This Agreement contain the entire understanding and agreement between you and Company concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of Company to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
This Agreement was last modified on the August 07, 2015 and is effective immediately.