Terms of Service
Effective August 18, 2006
This Terms of Service agreement (the "Agreement") is a legal
agreement between Social Media Investments, LLC ("SMI,"
"we," "us", or "our") and you, governing your use
of Smokinaphattie.com. Smokinaphattie.com (the "Service" or
"Smokinaphattie.com") is an online, social networking service that
enables Smokinaphattie.com members ("Member(s)") to create unique
online pages and share files, photographs, blogs, bookmarks, and other content
with friends and the entire Smokinaphattie.com community, including other
Members and users. The Service includes without limitation our Web sites
(collectively, including all content available through the Smokinaphattie.com
domains and sub-domains, collectively the "Sites"). In addition, when
visiting the Sites or using the Service, you and SMI shall be subject to the
terms of our Privacy Policy and any
other posted guidelines, rules, or notices applicable to the Service which may
be posted from time to time. All such policies, guidelines, rules, and notices
are hereby incorporated by reference into the Agreement.
By visiting the Sites or using the Service, you signify your agreement to
all of the terms and conditions in the Agreement. If you do not agree to, or
cannot comply with, all of these terms and conditions, you must not visit the
Sites or use the Service. If you wish to become a Smokin’ A Phattie Member,
communicate with other Members, and use the Service, please follow the
instructions on our Sign-Up Page.
From time to time, we may modify the terms and conditions of the Agreement
without prior notice. If we do so, we will post the amended Agreement on the
Sites. It is your responsibility to review the Agreement for any changes. If
you do not agree to, or cannot comply with, the Agreement as amended, you must
stop using the Service. If you continue to use the Service after any amendments
are posted, you will be deemed to have accepted the Agreement as amended.
PARENTAL ADVISORY
IF YOU ARE BETWEEN 13 AND 17 YEARS OF AGE, PLEASE REVIEW THIS AGREEMENT WITH
YOUR PARENTS OR GUARDIANS. YOU MUST BE AT LEAST 13 YEARS OLD TO USE
SMOKINAPHATTIE.COM. BECAUSE THE SERVICE MAY PROVIDE ACCESS TO CONTENT THAT
CONTAINS EXPLICIT MATERIAL (SUCH AS STRONG LANGUAGE OR DEPICTIONS OF SEX,
VIOLENCE, OR SUBSTANCE ABUSE), PARENTAL DISCRETION IS ADVISED FOR ALL USERS
AGED 13 TO 17. THIS AGREEMENT INCLUDES WARRANTY AND LIABILITY DISCLAIMERS. BY
USING THE SERVICE, YOU ACCEPT AND AGREE TO ALL TERMS AND CONDITIONS OF THIS
AGREEMENT WITHOUT MODIFICATION, ADDITION, OR DELETION. IF YOU DO NOT OR CANNOT
AGREE TO ALL OF THE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. IN THE
EVENT OF ANY NONCOMPLIANCE WITH THIS AGREEMENT, SMI MAY DENY ACCESS TO THE
SERVICE AT ANY TIME, WITH OR WITHOUT PRIOR NOTICE, AND WITHOUT LIABILITY.
IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT, UNTIL YOU ARE 18 YEARS OF AGE,
YOU USE THE SERVICE AT THE DISCRETION OF YOUR PARENTS/GUARDIANS. YOU AGREE TO
PROVIDE YOUR PARENTS/GUARDIANS WITH YOUR CURRENT SMI PASSWORD(S) AND
REGISTRATION E-MAIL ADDRESS, FOR PARENTAL VERIFICATION PURPOSES. THEY MAY ASK
US TO MODIFY OR DENY ACCESS TO YOUR ACCOUNT AND WE MAY DO SO AT ANY TIME, WITH
OR WITHOUT PRIOR NOTICE, AND WITHOUT LIABILITY.
1. Eligibility
You represent and warrant that you are at least 13 years old and that all
registration and profile information that you submit to SMI is truthful and
accurate. You agree to update such account information as necessary to keep it
accurate. If you misrepresent your age, we may terminate your Smokinaphattie.com
account at any time without warning, and without liability. You are solely
responsible for maintaining the security and confidentiality of your password
and other Member account information. You agree not to permit others to use
your password or other Member account information, and you agree to notify SMI
immediately of any unauthorized use of that information. SMI will not be responsible
for any loss or damage arising out of the unauthorized use of your password or
other Member account information; and you agree to indemnify and hold harmless
SMI, its officers, directors, agents, employees, subsidiaries, and affiliates
for any unauthorized, improper, or illegal use of that information. You, and
not SMI, are solely responsible for all Content (defined below) published,
distributed, or displayed through your account, including without limitation
any e-mail messages, posts, internal or externally embedded "widget"
code, and for your interactions with other Members or users. You
further represent and warrant that your use of the Service will not violate any
applicable law or regulation.
2. Term
This Agreement shall remain in full force and effect while you use the
Service and/or are a Member. In the event that membership is terminated, all
provisions of this Agreement which must survive in order to give effect to
their meaning, including without limitation all of your representations,
warranties, and indemnification obligations, shall survive. By using the
Service and/or becoming a Member, you acknowledge that SMI has the right to
charge for the Service and terminate your membership should you violate this
Agreement or fail to pay for the Service as required. If your Service
membership is terminated because you have violated this Agreement, you shall
not be entitled to a refund of any unused portion of subscription fees, should
any exist.
3. Non-commercial use only
The Service is for the personal use of individual Members only and may not
be used in connection with any commercial endeavor, except those that are
specifically approved or endorsed in writing by SMI's management.
Organizations, companies, and/or businesses may not become Members and should
not use the Service for any purpose. Passwords, Member or user names,
photographs, links, and any other Content may not be transferred or copied from
the Service for use with any other product or service. Any use of the Service
that is illegal, unlawful, or that violates the letter or spirit of this
Agreement or any other posted SMI policies, guidelines, or notices - including
without limitation collecting or harvesting Member or user names and/or e-mail
addresses by electronic or other means for the purpose of sending unsolicited
e-mail or unauthorized framing of or linking to the Sites - may be investigated
and may result in SMI suspending or terminating your account, refusing any and
all current or future use of the Service (or any portion thereof), and taking
appropriate legal action, including without limitation criminal, civil, and
injunctive redress. Commercial advertisements, affiliate links, and other types
of solicitations may be deleted from Member pages without notice, and may
result in loss of SMI Membership privileges. SMI reserves all right, title, and
interest in the Service not expressly granted under this Agreement to the
fullest extent possible; and any use of the Service not specifically permitted
under this Agreement is prohibited.
4. Use of content
A. The Service
enables you to upload, archive, post, publish, e-mail, or otherwise transmit to
Smokinaphattie.com ("Upload") Web pages, text, code, software, music,
sound, photographs, graphics, video, messages, and other information,
data, or material ("Content"). You, and not SMI, are solely
responsible for all Content that you Upload to Smokinaphattie.com blogs,
message boards, classified ads, Member profiles, search results, categories,
groups, or any other part of the Service.
B. In connection
with Content that you Upload to Smokinaphattie.com, you represent and warrant
that: (1) you own, or
have the necessary licenses, consents, permissions, and rights to use and to
authorize SMI to use, all copyright, trademark, patent, trade secret, and other
proprietary rights in and to all such Content, in order to permit inclusion and
use of the Content as contemplated by the Service and this Agreement; and (2) you have the written consent,
release, and/or permission of every person identifiable in the Content to use
their name and likeness, in order to permit inclusion and use of the Content as
contemplated by the Service and this Agreement.
C. You retain all
of your ownership rights in Content that you Upload to Smokinaphattie.com.
However, by Uploading the Content to Smokinaphattie.com, you hereby grant to
SMI a worldwide, non-exclusive, royalty-free, fully paid-up, perpetual,
irrevocable, fully sublicensable (through multiple tiers), and transferable
license to copy, distribute, prepare derivative works of, adapt, publicly
perform, publicly display, and use the Uploaded Content in connection with the
Service and SMI's business, including without limitation promotion and
redistribution of the Service and derivative works thereof, through any media
channel and in any media format known now or in the future. In addition, you
hereby grant to each Smokinaphattie.com Member or user a non-exclusive license
to access the Uploaded Content through the Service, and to reproduce, distribute,
prepare derivative works of, adapt, publicly perform, publicly display, and use
such Content as permitted through the Service functionality and under this
Agreement. These licenses will terminate when you remove the Uploaded Content
from the Service. All comments associated with Content - whether
associated by you, the Service, other Members or users, or anyone else - become
SMI's property; but SMI will grant you a perpetual right to use such
comments for personal, noncommercial purposes.
D. In using the
Service, you may access and be exposed to Content Uploaded by others that is
inaccurate, incomplete, indecent, offensive, or otherwise objectionable.
Uploaded Content is the sole responsibility of the person who Uploaded it. You
will not hold SMI responsible for the actions or inactions of Members or users,
including without limitation any Uploaded Content. SMI does not make any
representation or warranty about the accuracy, integrity, quality, or any other
aspect of Content posted on the Sites or in connection with the Service. SMI
expressly disclaims all liability for any loss or damage incurred as a result
of the use of such Content. By using the Service, you agree to bear all risks
associated with any use of any Content posted on the Sites or in connection
with the Service and any reliance on the accuracy, completeness, or usefulness
of such Content. Any opinions, statements, advice, offers, services, or other
information or material expressed or made available in or through Uploaded Content
are those of the respective author(s) of such Content and not of SMI.
E. SMI does not
pre-screen, edit, or review Content Uploaded to Smokinaphattie.com archives or
publicly-available areas of the Service. If SMI is notified by a user, Member,
or Content owner of Content posted on the Sites or in connection with the
Service that allegedly does not conform to this Agreement, SMI may investigate
the allegation and determine in good faith, in SMI's sole discretion, whether
to remove or block access to such Content. SMI has the right (but not the
obligation), in its sole discretion, to remove, relocate, change from public to
private, or otherwise block or restrict any Uploaded Content at any time, with
or without notice, and without liability.
F. You acknowledge
and agree that SMI may access, preserve, and disclose your account information
and Content if required by law or in a good faith belief that it is reasonably
necessary in order to: (1)
comply with legal process; (2)
enforce the Agreement; (3)
respond to claims that any Content violates the rights of Members, users, or
third-parties; (4)
respond to your requests for customer service; or (5) protect the rights, property,
or personal safety of SMI, its Members or users, and the public.
5. Copyright Policy
A. SMI does not
condone or tolerate activities and actions that breach the rights of copyright
owners. As explained in more detail below, our policy is to respond to written
notifications of claimed infringement that comply with the Digital Millennium Copyright
Act ("DMCA"). Upon receiving such notification, we may remove or
block access to Content that we believe in good faith is copyrighted material
that has been illegally copied, distributed, or otherwise exploited. We also
may terminate or suspend access to the Service, and remove all Content Uploaded
by, anyone found to be a repeat infringer. Upon removing or blocking access to
Content in response to a DMCA notification, we will make a good-faith attempt
to contact the owner/author/administrator of each affected Web page so that
they may send us a DMCA counter notification.
B. Infringement notification. If
you are a copyright owner (or the copyright owner's agent) and you believe that
any Uploaded Content infringes your copyright, you may submit a written
notification to our Copyright Agent. To expedite the processing of the
notification, please submit it in the following format, including section
numbers:
(1) Identify in
adequate detail the copyrighted work (e.g., lines of text, music, photo,
artwork, etc.) that you believe has been infringed.
(2) Identify in
adequate detail the Content that you believe is infringing the copyrighted work
listed in Section (1) above. Describe the allegedly infringing Content and
include sufficiently detailed information on its location, so that we can find
it and verify that it exists. You must identify each search result that links
directly to a Web page containing the allegedly infringing content; in other
words, provide the search query that you used, and the URL for each allegedly
infringing search result.
(3) Provide
information reasonably sufficient for us to contact you, including your
address, telephone number, and, if available, your e-mail address.
(4) If possible,
provide information reasonably sufficient for us to contact the provider of the
allegedly infringing content or the owner, author, or administrator of the Web
page containing such Content. We would prefer their e-mail address, if
available.
(5) Include this
statement: "I have a good faith belief that use of the copyrighted
material described above on the allegedly infringing Web page(s) is not
authorized by the copyright owner, its agent, or the law."
(6) Include this
statement: "I swear, under penalty of perjury, that the information in
this notification is accurate and that I am the copyright owner or am
authorized to act on behalf of the copyright owner to make this
complaint."
(7) Sign the
notification, and then send it to our Designated Agent (contact information
below).
Once our Designated Agent has received a written, DMCA-compliant
notification, our policy is to remove or block access to the allegedly
infringing Content and make a reasonable attempt to promptly notify the Content
provider or the owner/author/administrator of the Web page containing such
Content, that we have done so. In addition, we reserve the right to terminate
or suspend access to the Service, and to remove all Content Uploaded, by anyone
found to be a repeat infringer.
You acknowledge that failure to comply with all requirements of this section
of the Agreement may invalidate your notification. For more details, see the
DMCA, 17 U.S.C. 512(c)(3).
C. Counter notification. If
the affected Content provider or the owner, author, or administrator of the
affected Web site believes that removed or blocked Content is not infringing,
or believes that it has the right (from the copyright owner or its agent, or
pursuant to law) to Upload, post, and use such Content, then the affected party
must send us a written, DMCA counter notification. To expedite the processing
of the counter notification, please submit it in the following format,
including section numbers:
(1) Identify in
adequate detail the removed/blocked Content and the location at which it
appeared before it was removed or access to it was blocked.
(2) Provide your
name, address, telephone number, e-mail address (if available), a statement
that you consent to the jurisdiction of Federal District Court for the judicial
district in which your address is located (or Los Angeles County, California if
your address is outside of the United States), and a statement that you will
accept service of process from the person who sent SMI notification of the
claimed infringement, or from an agent of that person.
(3) Include this
statement: "I swear, under penalty of perjury, that I have a good faith
belief that each search result or item identified above was removed or disabled
as a result of mistake or misidentification of the material to be removed or
disabled."
(4) Sign the
counter notification, and then send it to our Designated Agent.
You acknowledge that failure to comply with all requirements of this section
of the Agreement may invalidate your counter notification.
If our Designated Agent receives a counter notification, our policy is to send
a copy of it to the original complaining party, informing such party that we
will restore the removed Content or cease blocking access to it, 10 business
days from our receipt of the counter notification. Unless we receive notice
from the original complaining party that it has filed an action seeking a court
order against the Content provider or Uploading Member (to restrain them from
engaging in infringing activity relating to the Content on the Service), the
removed Content may be replaced or access to it restored within 10 to 14
business days after our receipt of the counter notification, at our discretion.
For more details, see the DMCA, 17 U.S.C. 512(g)(2) and (3).
D. Designated
agent to receive notifications of claimed infringement. SMI's Designated Agent
for claims of copyright (or other intellectual property) infringement can be
reached as follows:
Designated Agent for Infringement Notices
c/o SMI, Inc.
2801 Network Blvd., Suite 503
Frisco, TX 75034
(w) 972-769-0746 ext. 19 (fax) 972-543-0300
Notifications can only be sent to us by e-mail with our prior agreement.
Please also note that, for security reasons, we generally cannot accept
attachments. Any notification of infringement that is submitted electronically
with an attachment may not be received or processed. A faxed notification
usually will generate the quickest response.
Please only send notifications of claimed infringement to the Designated
Agent. Any other comments, feedback, technical support requests, or
communications should be directed to SMI Customer Service at cs@smokinaphattie.com.
6. Code of Conduct
You agree that you will not, and it shall be a violation of this Agreement
to:
A. Upload, copy,
distribute, share, sell, create derivative works of, or otherwise alter or use
any Content, in whole or in part, for any purpose whatsoever except as
expressly authorized in this Agreement; and to do so in any manner exceeding
the scope of your rights to use such Content (e.g., license rights associated
with premium content or subscription-based materials), without permission from
the Content owner, or otherwise in violation of another person's rights to such
Content.
B. Upload, copy,
distribute, share, or otherwise use Content that is unlawful, obscene,
defamatory, libelous, harmful, offensive or hateful on the basis of religion,
gender, sexual orientation, race, ethnicity, age, or disability, harassing,
degrading, pornographic, threatening, intimidating, abusive, that would violate
another person's rights, constitute or encourage a criminal offense, give rise
to civil liability, or violate any local, state, national, or international law
or regulation, or that is otherwise inappropriate.
C. Upload, copy,
distribute, share, or otherwise use Content that constitutes advertising or
promotional material, if posted in areas of Smokinaphattie.com which are not
designated for such purposes (e.g., not in the classified ads), or if
"junk mail," "spam," "chain letters,"
"pyramid schemes," or any other form of unsolicited or unauthorized
commercial communication, or that constitutes or generates unauthorized banner
ads, pop-ups, pop-unders, and interstitials. To protect our Members from such
advertising or solicitation, SMI reserves the right to (among other things)
restrict the number of e-mails that a Member may send to other Members in any
24-hour period, to a number that SMI deems appropriate in its sole discretion.
If you violate this Agreement and transmit unsolicited bulk e-mail, instant
messages, or any other unsolicited communications through the Service, you
acknowledge that you will have caused SMI substantial harm, but that the amount
of the harm would be extremely difficult to determine. Accordingly, as a
reasonable estimation of such harm, you agree to pay SMI fifty dollars
(US$50.00) for each such unsolicited e-mail or other communication that you
transmit through the Service.
D. Upload, copy,
distribute, share, or otherwise use Content that contains or embodies software
viruses, worms, Trojan horses, bugs, or any other malicious computer code that
is designed to interrupt, undermine, destroy, or limit the functionality of any
computer software, hardware, or telecommunications equipment, or that is
designed to perform functions on any software, hardware, or equipment without
the owner's express consent.
E. Upload, copy,
distribute, share, or otherwise use Content that violates the Fair Housing Act
by stating, in any ad or notice for the sale or rental of any dwelling, a
discriminatory preference based on race, color, national origin, religion, sex,
familial status, or handicap (or violates any state or local law prohibiting
discrimination on the basis of these or other characteristics).
F. Upload, copy,
distribute, share, or otherwise use Content that is false, deceptive,
misleading, deceitful, misinformative, or constitutes "bait and
switch".
G. Upload, copy,
distribute, share, or otherwise use Content that advertises any illegal service
or the sale of any items the sale of which is prohibited or restricted by any
applicable law, including without limitation items the sale of which is
prohibited or regulated by Texas law. Many laws, policies, and regulations in
various jurisdictions regulate the purchase and sale of goods and services. You
are encouraged to research the applicable laws and regulations that may apply
to your transaction. For your convenience, here is a partial list, for
illustrative purposes only, of some categories of prohibited and restricted
items, the purchase and sale of which are forbidden on SMI:
(1) Child
pornography or obscene material;
(2) Alcohol or
tobacco products;
(3) Controlled
substances or illegal drugs, substances and items used to manufacture
controlled substances and drug paraphernalia;
(4) Prescription
drugs and medical devices, such as prescription or contact lenses, hearing
aids, defibrillators, or hypodermic needles;
(5) Nonprescription
drugs that make false or misleading treatment claims or treatment claims that
require FDA approval;
(6) Weapons and
related items, including firearms, ammunition, silencers, sniper scopes, large
capacity magazines, disguised, undetectable or switchblade knives, martial arts
weapons, BB guns, stun guns, or tear gas;
(7) Fireworks,
including "safe and sane" fireworks or any destructive explosives or
devices;
(8) Blood, bodily
fluids, or body parts;
(9) Animals and
animal parts, including the retail sales of dogs and cats;
(10) Restricted or
regulated plants and insects, such as noxious weeds, endangered plant species,
or live insects or pests;
(11) Pesticides or
hazardous substances, or items containing hazardous substances such as
contaminated toys, or arts or crafts materials containing toxic substances
without a warning label;
(12) Illegal
telecommunications equipment, such as cable or satellite descramblers, password
sniffers, access cards, access card programmers and unloopers;
(13) Stolen
property or personal property with the serial number altered or removed;
(14) Burglary
tools, such as lock-picks or motor vehicle master keys;
(15) False
identification cards, citizenship documents, birth certificates, or items with
police insignia;
(16) Counterfeit
currency, stamps, and coins, and equipment designed to produce them;
(17) Counterfeit
or "knock-off" brand name goods;
(18) Material that
infringes copyright, such as "warez" or bootlegs (without artist
consent);
(19) Airline
tickets that restrict transfer;
(20) Gambling
items, such as lottery tickets, raffle tickets, sweepstakes entries, slot
machines, or sports trading card 'grab bags';
(21) Used or
rebuilt batteries, or batteries containing mercury;
(22) Used bedding
and clothing, unless sanitized as required by law;
(23) Non-packaged
food items or adulterated food;
(24) Bulk e-mail
or mailing lists that contain names, e-mails, phone numbers, addresses, or
other personal identifying information.
H. Include in your
Member profile any telephone number, street address, last name, URL, or e-mail
address.
I. Disclose your
password or transfer your account to any third party, or allow any third party
to access your account.
J. Impersonate any
person or entity, including without limitation SMI officials, staff, and/or
Members.
K. Upload, copy,
distribute, share, or otherwise use Content that includes personal or
identifying information about another person without that person's explicit
consent.
L. Access the
Service by any means other than through the interface provided by SMI for use
in accessing the Service. This includes not using or launching any automated
system, including without limitation any spider, robot (or "bot"),
scraper, or offline reader, that accesses the Service in a way that sends more
request messages to the Smokinaphattie.com servers in a given time period than
a human reasonably can produce in the same time period using a conventional
online Web browser; and not using or launching any unauthorized script to add
friends. Notwithstanding this, SMI grants the operators of general purpose
Internet search engines permission to use spiders to copy Content from the
Sites for the sole purpose of creating publicly available, searchable indices
of such Content, but not caches or archives of such Content. ("General
purpose Internet search engine" does not include a web site or search
engine or other service that specializes in classified listings or in any
subset thereof, such as jobs, housing, for sale, services, or personals, or
that is in the business of providing classified ad listing services.) SMI
reserves the right to revoke these exceptions, in general or specific
instances.
M. Interfere with
or disrupt the Service or servers or networks connected to the Service, make
the Service available over a network (other than SMI's network) where it could
be used by others, or disobey any requirements, procedures, policies, or
regulations of networks connected to the Service.
N. Use the Service
to artificially generate traffic or page links to a Web site or for any other
purpose not intended for personal, noncommercial use of the Service.
O. Cover or
obscure any banner or other advertisements on any Smokinaphattie.com page via
HTML/CSS or other means.
P. Collect,
harvest, or store any personally identifiable information, including Member
account information, from the Service.
Q. Translate,
reverse engineer, decompile, disassemble, modify, or create derivative works
based on the Service, in whole or in part.
R. Circumvent,
disable, violate, or otherwise interfere with any security related feature of
the Service, or any technology or feature that restricts or prevents copying or
use of Content or that enforces limitations on use of the Service or Content.
S. Rent, lease,
sublicense, transfer, sell, trade, resell, or exploit for any commercial
purposes, any portion of the Service (including without limitation your account
information), use of the Service, or access to the Service.
T. Use the Service
to harass or "stalk" anyone.
U. Upload Content
that exploits anyone under the age of 18 in a sexual or violent manner, or that
solicits personally identifiable information from anyone under the age of 18.
V. Use the Service
in any way to provide material support or resources (or to conceal or disguise
the source, location, nature, or ownership of material support or resources) to
any organization designated by the U.S. government as a foreign terrorist
organization under section 219 of the Immigration and Nationality Act, 8 U.S.C.
1189.
W. Use the Service
in any way that violates the terms of this Agreement, or that aids, encourages,
or purports to authorize anyone else to violate the terms of this Agreement.
X. Use the Service
in any way that intentionally or unintentionally violates any applicable local,
state, national, or international law or regulation.
7. Proprietary rights in content on Smokinaphattie.com
You acknowledge and agree that the Service uses and contains proprietary and
confidential technology and information owned by or licensed to SMI, and
protected by applicable intellectual property and other laws and international
treaties. You are not granted any right or license with respect to the
trademarks of SMI or any third party. You further acknowledge and agree that
Content contained in sponsor advertisements or displayed, streamed, or
otherwise made available through the Service may be protected by applicable
intellectual property and other laws and international treaties, as well as
terms and conditions imposed by third-party licensors in connection with their
Content made available on or through the Service.
8. Member disputes
You are solely responsible for your interaction with other
Smokinaphattie.com Members or users, whether online or offline. SMI reserves
the right, but has no obligation, to monitor or become involved in disputes
between you and other Members or users. If you have a dispute with one or more
Members or users, you release SMI (and our officers, directors, agents, employees,
subsidiaries, and affiliates) from claims, demands, and damages (actual and
consequential) of every kind and nature, known and unknown, arising out of or
in any way connected with such dispute. If you are a California resident, you
waive California Civil Code Section 1542, which says: "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."
9. Privacy
As explained herein, use of the Sites and Service is also governed by our Privacy Policy.
10. Disclaimers
A. The Service
(including any software contained therein) is provided "AS-IS." Any
use of the Service is at your own risk. To the maximum extent permitted by
applicable law, SMI expressly disclaims all warranties, whether express or
implied, including without limitation implied warranties of merchantability,
fitness for a particular purpose, non-infringement, and title. SMI makes no
representation or guarantee that the Service will be free from loss, damage,
destruction, corruption, interference, viruses, worms, bugs, Trojan horses,
attacks, hacking, or other security breaches; and SMI disclaims any liability
relating thereto. SMI cannot guarantee and does not promise any specific
results from use of the Service or Internet. You are solely responsible for
creating and maintaining your own personal backup of any of your Content
Uploaded to Smokinaphattie.com.
B. The Service may
be unavailable from time to time for maintenance or other reasons. Under no
circumstances shall SMI be held liable for any error, omission, interruption,
deletion, loss, corruption, defect, delay, theft, destruction, unauthorized
access to, or alteration of communications, or any other delay or failure in
performance. Without limiting the foregoing, SMI shall not be held liable for
any problem, technical malfunction, or failure of the Internet or any
telecommunications equipment, network, or line, computer online system, server
or provider, computer or other equipment, e-mail, media player, or other
software or hardware - whether resulting from technical problems, traffic
congestion on the Internet or at any Web site or combination thereof, or any
other reason. SMI shall not be held liable for any delay or failure in
performance resulting directly or indirectly from acts of nature, forces, or
causes beyond SMI's reasonable control, including without limitation other
equipment failures, electrical power failures, strikes, labor disputes, riots,
insurrections, civil disturbances, shortages of labor or materials, fires,
floods, storms, explosions, acts of God, war, governmental actions, orders of
domestic or foreign courts or tribunals, non-performance of third parties, or
loss of or fluctuations in heating, lighting, or air conditioning. SMI shall
not be held liable for any loss, damage, injury, or death of any person, or any
loss or damage to any computer or other equipment, resulting directly or
indirectly from participation in the Service, from accessing or using Content
or other materials in connection with the Service, and/or from any other reason
set forth herein. Without prior notice, SMI may modify, suspend, or discontinue
any part of the Service (including any Content) or your use of them; and in the
event SMI does so, it will not be liable to you or any third party.
C. You acknowledge
that your Uploading of any Content to Smokinaphattie.com is done at your own
risk. SMI shall not be held liable for any loss, damage, or injury relating to
such Content in any way. SMI shall not be held liable for any incorrect or
inaccurate Content posted on the Sites or in connection with the Service,
whether caused by users, Members, or any equipment or programming associated
with or used in the Service. Any financial Content displayed on or available
through the Service is for your own personal, non-professional use. It should
not be considered investment advice. Always seek the advice of a professional
financial advisor when making decisions about your investment strategy. SMI
shall not be held liable for the conduct of any Member or user. Your
interactions with Members, other individuals, and/or organizations found on or
through the Service, including payment and delivery of goods or services, and
any other terms, conditions, warranties, or representations associated with
such dealings, are solely between you and such Members, individuals, and/or
organizations. You should make whatever investigation you feel necessary or
appropriate before proceeding with any online or offline transaction with any
of these third parties. Under no circumstances shall SMI be held liable for any
loss, damage, or injury, including without limitation personal injury or death,
resulting from any use of the Service, any Content posted on the Service or
transmitted to Members, or any interaction or dealings between Members or
users, whether online or offline.
D. Some of the
Content, products, and services available through the Service may include
materials belonging to third parties. SMI or its partners may present
advertisements or promotional content on or through the Service. SMI has no
control over and does not warrant, endorse, guarantee, or assume liability for
any Content, product, or service that is advertised, promoted, or offered by a
third party through the Service or any hyperlinked Web site, or featured in any
banner or other advertising. Your dealings with, or participation in promotions
of, any third-party advertiser on or through the Service are solely between you
and the third party. You agree that SMI shall not be held liable, directly or
indirectly, for any loss, damage, or injury of any kind incurred as a result of
any such dealings or the presence of such third parties on the Service. As when
dealing with any product or service provider, you should use your best judgment
and exercise caution as appropriate.
E. The Service may
present links to third-party Web sites that are not owned or operated by SMI.
SMI shall not be held liable for the availability of such third-party Web sites
or their contents. You agree that SMI shall not be held liable in any way for
any loss, damage, or injury caused by or in connection with your use or
reliance on contents, goods, or services available through any such third-party
Web site.
F. SMI reserves
the right, in its sole discretion, to modify, delete, or otherwise change a
Member's username and URL address, with or without notice, at any time, and
without liability. SMI reserves the right to use profile pictures, user names,
and/or URL addresses of Members on the Sites, including without limitation our
Sign-Up page, and in connection with advertisements and promotions.
11. Limitation on liability
IN NO EVENT SHALL SMI BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT,
GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR OTHER
DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF REVENUE OR INCOME,
BUSINESS INTERRUPTION, CORRUPTION OF DATA, PERSONAL INJURY, DEATH, PAIN AND
SUFFERING, EMOTIONAL DISTRESS, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS ARISING
FROM YOUR USE OF THE SITES OR SERVICE, EVEN IF SMI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY YOU FROM SMI OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY
WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT; AND NEITHER YOU NOR ANY THIRD
PARTY MAY RELY ON ANY SUCH ADVICE OR INFORMATION. YOU SPECIFICALLY ACKNOWLEDGE
THAT SMI SHALL NOT BE LIABLE FOR CONTENT UPLOADED BY MEMBERS OR USERS, OR FOR
THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY MEMBER, USER, OR OTHER
THIRD PARTY, AND YOU BEAR THE ENTIRE RISK OF DAMAGE OR HARM FROM THE FOREGOING.
SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF
OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH
SMOKINAPHATTIE.COM, OR THE SERVICE OR ANY LINKS THEREON, AS WELL AS BY REASON
OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH
SMOKINAPHATTIE.COM, OR THE SERVICE OR ANY LINKS THEREON. SOME JURISDICTIONS DO
NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO LIMITATIONS AND
EXCLUSIONS HEREIN MAY OR MAY NOT BE APPLICABLE TO YOU. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED HEREIN, SMI'S ENTIRE LIABILITY TO YOU FOR ANY CAUSE
OR ACTION WHATSOEVER, AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT, SHALL AT
ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SMI FOR THE SERVICE
DURING THE TERM OF MEMBERSHIP.
12. Indemnity
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS SMI, ITS OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES FROM ANY CLAIM, SUIT, ACTION,
DEMAND, LOSS, AND DAMAGES, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, COSTS,
AND EXPENSES, MADE OR INCURRED BY ANY THIRD PARTY ARISING OUT OF OR RELATING TO
YOUR USE OF THE SERVICE, ANY CONTENT THAT YOU UPLOAD, YOUR USE OF CONTENT
ACCESSED FROM THE SITES OR SERVICE, YOUR VIOLATION OF THIS AGREEMENT, AND/OR
YOUR VIOLATION OF ANY THIRD-PARTY RIGHTS.
13. Disputes
By using the Service, you agree that the Service shall be deemed solely
based in Texas, and the Sites shall be deemed a passive Web site that does not
give rise to personal jurisdiction over SMI, either specific or general, in
jurisdictions beyond Texas. In the event there is any dispute about or
involving the Service, such dispute will be governed by the laws of the State
of Texas without regard to its conflict of law principles. You agree to
personal jurisdiction by and venue in the state and federal courts of the State
of Texas, City of Frisco. The parties intend the forum choice of Frisco, Texas to be mandatory and not permissive in nature.
14. Notices
SMI may provide you with notices, including without limitation notices
regarding changes to the Agreement, by e-mail, regular mail, or postings on the
Service. Unless the notice states otherwise, it will become effective
immediately.
15. United States export controls
To the extent that software used in connection with the Service
("Software") is subject to U.S. export controls, it may not be
downloaded from the Service or otherwise exported or re-exported: (A) into, or to a national or resident
of, Cuba, Libya, North Korea, Iran, Syria, or any other country to which the
U.S. has embargoed goods; or (B)
to anyone on the U.S. Treasury Department's list of Specially Designated
Nationals or the U.S. Commerce Department's Table of Deny Orders. By
downloading or using the Software, you represent and warrant that you are not
located in, under the control of, or a national or resident of, any such
country or on any such list.
16. Miscellaneous
This Agreement (including all SMI policies, guidelines, rules, and notices
incorporated by reference herein) represents the complete and exclusive
statement of the agreement between SMI and you regarding the use of the Sites
or Service; and it supersedes any prior proposal, oral or written agreement,
and any other communications between SMI and you relating to the subject matter
of this Agreement. Any failure of SMI to exercise or enforce any right or
provision of this Agreement shall not constitute a waiver of such right or
provision. If any provision of this Agreement is held invalid by a court of
competent jurisdiction, the parties nevertheless agree that the court should
endeavor to give effect to the parties' intentions as reflected in the
provision, and the remainder of the Agreement shall continue in full force and
effect. No agency, partnership, joint venture, employee-employer or
franchiser-franchisee relationship is intended or created by this Agreement.
Except as otherwise expressly provided in this Agreement, there shall be no
third-party beneficiaries to this Agreement. The section titles in this
Agreement are for convenience only and have no legal or contractual effect. Smokin’
A Phattie is a trademark of SMI, LLC.
Contact us. If you
have any questions about this Terms of Service Agreement, please contact us at
cs@smokinaphattie.com.