LICENSE TO USE SITE. USE LIMITATION.
Subject to your performance of all of the provisions of this Agreement, Smarsh hereby grants you a limited, terminable, non-transferable and non-exclusive license to access and use the Sites solely as provided in this Agreement. You may not modify, copy, redistribute, download, transmit, display, reproduce, publish, sublicense, create derivative works from, transfer, incorporate into any information retrieval system, or sell any information, software, products or services obtained from the Sites without the prior permission of Smarsh or the copyright owner. You acquire no rights or licenses in or to the Sites and materials contained therein other than the limited right to utilize the Sites in accordance with these terms.
Harassment in any manner or form on the Sites, including via e-mail and chat or by obscene or abusive language is strictly forbidden. Impersonation of others on the Sites, including a Smarsh employee, host, representative, or visitor, is prohibited. You may not upload to, distribute, or otherwise publish through the Sites any content which is libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, otherwise objectionable, which may constitute or encourage a criminal offense, violate the rights of any party, otherwise give rise to liability, or violate any law.
By using the Sites, you represent, warrant and covenant that you: (i) have the power and authority to enter into this Agreement; (ii) shall not use any rights granted in this Agreement for any unlawful purpose; and (iii) shall use the Sites only as set forth in these terms and conditions.
COPYRIGHTS AND TRADEMARKS.
You acknowledge that the Sites have been developed, compiled, prepared, revised, selected and arranged by Smarsh and others through the expenditure of substantial time, effort, and money and constitute valuable intellectual property and trade secrets of Smarsh and others. The entire content included in the Sites, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof, is copyrighted as a collective work under the United States and other copyright laws, and is the property of Smarsh. The collective work includes works that are licensed to Smarsh. Copyright 2001-2012. ALL RIGHTS RESERVED. All trademarks, service marks, logos and trade names displayed on the Sites, including without limitation SMARSH and the "S" Logo (collectively the "Marks") are trademarks or registered trademarks of and are proprietary to Smarsh, or other respective owners that have granted Smarsh the right and license to use such Marks, and cannot be used without the written permission of Smarsh or the third party that owns the Marks. Smarsh exclusively owns all worldwide right, title and interest in and to all documentation, software, contents, graphics, designs, data, computer codes, ideas, know-how, "look and feel," compilations, magnetic translations, digital conversions and other materials included within the Sites and related to the Sites and all modifications and derivative works thereof, and all intellectual property rights related thereto.
NOTICES AND PROCEDURES FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to the Site’s designated agent. ALL INQUIRIES NOT RELEVANT TO OR NOT COMPLYING WITH THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. Smarsh respects the intellectual property of others, and we ask our users and visitors to do the same. Smarsh will process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of a notice complying with the DMCA, Smarsh will act to remove or disable access to any material found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to material or activity that is found to be infringing.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Smarsh with the following information. Please be advised that to be effective, the notification must include ALL of the following:
- a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site;
- your name, address, telephone number, email address, and all other information reasonably sufficient to permit Smarsh to contact you;
- a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notices of claimed copyright infringement should be directed to:
Attn: Legal Department
921 SW Washington Street, Suite 540
Portland, OR 97205
IMPORTANT NOTE: THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING SMARSH THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS PRODUCT OR SERVICE RELATED QUESTIONS AND REQUESTS, OR QUESTIONS ABOUT PRIVACY, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
In the event a Smarsh product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, Smarsh has the right to refuse or cancel any orders placed for product or service listed at the incorrect price. Smarsh has the right to refuse or cancel any orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, Smarsh shall issue a credit to your credit card account in the amount of the incorrect price.
Smarsh may terminate this Agreement at any time, for any reason, with or without notice to you. You agree that immediately upon termination of this Agreement, whether or not you receive notice of such termination, the license in this Agreement will be immediately terminated, and you do not have any further rights to use the Sites. Upon termination of the license granted in this Agreement, Smarsh's obligations to you will cease. The provisions relating to Copyrights and Trademarks, Disclaimer, Claims, Limitation of Liability, Indemnification, Applicable Laws, Arbitration, and General, survive any termination.
In order to terminate website services, a customer must provide written notice to Smarsh-AdvisorSquare through one of the following methods:
- via e-mail to firstname.lastname@example.org
- via facsimile to (310) 634-1839; Attention: Customer Support
- via U.S. Postal Service to: 1600 Rosecrans Ave. Building 7, Suite 300. Manhattan Beach, CA 90266
Notice of termination must include AdvisorSquare Account Number, Customer name, Address, Telephone number, and the effective date of termination of the account. Please note, the effective date of termination must be the last day of a billing cycle and AdvisorSquare does not pro-rate monthly fees. Written notification of termination must be received by Smarsh-AdvisorSquare no less than 5 business days prior to the next billing cycle to be effective on the last day of the current billing cycle.
Smarsh does not and cannot review all communication and material posted to, or created by, users accessing the Sites, and is not responsible for the content of these communications and materials. You acknowledge that by providing you with the ability to view and distribute user generated content on the Sites, Smarsh is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any content or activities on the Sites. However, Smarsh reserves the right to block or remove communications or materials that it determines to be: (i) abusive, defamatory, or obscene; (ii) fraudulent, deceptive, or misleading; (iii) in violation of a copyright, trademark or other intellectual property right of another; (iv) in violation of any law or regulation; or (v) offensive or otherwise unacceptable to Smarsh at its sole discretion. Note that any personally identifiable information you may post or transmit will be treated by Smarsh in accordance with Smarsh's Privacy Statement.
Except for any personally identifiable information we may collect from you under the guidelines established in our Privacy Statement, any material, information or other communication you transmit, upload or post to the Sites will be considered non-confidential and non-proprietary. Smarsh will have no obligations with respect to this communication. By posting such communications to any part of the Sites, you automatically grant, and you represent and warrant that you have the right to grant, to Smarsh a royalty-free, irrevocable, perpetual, non-exclusive, transferable, fully-paid, worldwide license (with the right to sublicense) to use, copy, modify, perform, publish, display, reformat, translate, excerpt (in whole or in part) and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, in any form, media, or technology now known or later developed, and to grant and authorize sublicenses of the foregoing. You also represent and warrant that the holder of any rights in such content, including intellectual property rights, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
USER CHAT ROOMS.
Smarsh may, but is not obligated to, monitor or review any areas on the Sites where users transmit or post communications or communicate solely with each other, including, but not limited to, chat rooms, bulletin boards or other user forums, and the content of any such communications. Smarsh has the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on the Sites. Smarsh, however, has no liability related to the content of any such communications, whether or not arising under the laws of copyright, trademarks, libel, privacy, obscenity, or otherwise.
In an attempt to provide increased value to our visitors, this Site may contain links to other sites on the Internet that are owned and operated by third-party vendors and other third parties (the "External Sites"). However, even if the third party is affiliated with Smarsh, Smarsh has no control over External Sites, all of which have separate privacy and data collection policies and practices, independent of Smarsh. Smarsh has no responsibility or liability for these independent policies or actions and is not responsible for the privacy practices or the content of External Sites. These linked sites are only for your convenience and therefore you access them at your own risk. Links do not imply that Smarsh sponsors, endorses, is affiliated or associated with, or has been legally authorized to use any trademark, trade name, service mark, design, logo, symbol or other copyrighted materials displayed on or accessible through such External Sites. Nonetheless, Smarsh seeks to protect the integrity of the Sites and the links placed upon it and therefore requests any feedback on not only its own Sites, but for sites it links to as well (including if a specific link does not work).You should contact the Site administrator or Webmaster for those External Sites if you have any concerns regarding such links or the content located on such External Sites.
Each claim or statement about the effectiveness of Smarsh products or each claim or statement comparing the effectiveness of Smarsh products to the effectiveness of other products is expressly limited to the United States, unless otherwise disclosed on the Site.
Smarsh makes no warranties or representations about the accuracy or completeness of the Sites’ content or the content of any External Sites. Smarsh does not endorse and is not responsible for the accuracy or reliability of any opinion, advice or statement made through the Sites by any party other than Smarsh. Smarsh does not filter advertisements or other content that children may view through the Sites or "hot-linked" sites. Smarsh encourages parents and guardians to spend time online with their children and to consider using electronic filtering software.
THE SITES AND THE MATERIALS, INFORMATION, SERVICES, AND PRODUCTS IN THE SITES, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED "AS IS, AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SMARSH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SMARSH DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMARSH DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY.
IN NO EVENT WILL SMARSH BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL, DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF SMARSH HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM THE SITES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Smarsh, its officers, directors, employees, agents, licensors, suppliers, successors and assigns (collectively the "Provider") from and against all liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, whether or not a lawsuit or other proceeding is filed, arising out of or relating to: (i) any violation of these terms and conditions; (ii) your use of the Sites, (iii) any transaction or activity related to your use of the Sites; (iv) any and all claims, demands, legal action or judgments arising out of or relating to any use, modification or enhancement of the products or services you acquire from Smarsh; or (v) negligent or wrongful conduct by you or any other person accessing the Site using your Internet account. In the event you fail to promptly indemnify and defend such claims or pay the expenses of the Provider, as provided above, the Provider has the right to defend itself, and in that case, you shall reimburse the Provider for all of its reasonable attorney's fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of the Provider's written request.
COMMUNICATIONS ON INTERNET. EVENTS BEYOND OUR CONTROL.
Use of the Internet is solely at your own risk and is subject to all applicable local, state, national, and international laws and regulations. Smarsh and its affiliates are not responsible for the security of information transmitted via the Internet, the accuracy of the information contained on the Sites, or for the consequences of any reliance on such information. You must make your own determination as to these matters. Smarsh cannot guarantee your ability to access the Sites at all times, or that the Sites will be secure, uninterrupted, or error-free; nor can Smarsh provide assurances that transactions will be completed properly. Smarsh is not responsible for technical problems that may hinder the efficacy of a transaction on the Sites. Smarsh and its affiliates are not liable for damages as a result of any delay or other failure of performance due to causes beyond its reasonable control including, without limitation, acts of God, acts of customer or any of its representatives, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, terrorism, telecommunications interruptions or computer viruses.
Your use of the Sites is governed in all respects by the laws of the State of Oregon without regard to choice of law provisions, and not by the 1980 U.N. Convention on contracts for the international sale of goods. You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the Sites (including but not limited to the purchase of Smarsh products) will be in the state or federal courts located in Multnomah County, Oregon. Any cause of action or claim you may have with respect to the Sites (including but not limited to the purchase of Smarsh products) must be commenced within one (1) year after the claim or cause of action arises. Smarsh's failure to insist upon or enforce strict performance of any provision of these terms and conditions will not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice acts to modify any of these terms and conditions. Smarsh may assign its rights and duties under this Agreement to any party at any time without notice to you. Smarsh makes no representation that materials on the Sites are appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited. Those who choose to access the Sites from locations outside Oregon do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the materials in violation of United States export laws and regulations. Any claim relating to the materials is governed by the laws of the State of Oregon.
By using the Sites, you agree that Smarsh, at its sole discretion, may require you to submit any disputes arising from the use of the Sites, or these terms and conditions concerning or, including disputes arising from or concerning their interpretation, violation, nullity, invalidity, non-performance or termination, as well as disputes about filling gaps in this contract or its adaptation to newly arisen circumstances, to final and binding arbitration under the International Rules of Arbitration of the American Arbitration Association, by one or more arbitrators appointed in accordance with these rules. Notwithstanding the International Rules of Arbitration, however, such proceeding will be governed by the laws of the state Oregon and shall be conducted in Portland, Oregon. Any award in an arbitration initiated under this clause is limited to monetary damages and will include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator(s) has no authority to award punitive, consequential or other damages not measured by the prevailing party's actual damages in any arbitration initiated under this section, except as may be required by statute.