1. Introduction and Accepting These Terms
We reserve the right to revise and update the Terms in our sole discretion at any time. For instance, we may need to change these Terms if we come out with a new feature or for some other reason. Smartshare will publish such revisions and updates from time to time. Whenever we make changes to these Terms, the changes are effective IMMEDIATELY after we post such revised Terms (indicated by revising the date at the top of these Terms) or upon your acceptance if we provide a mechanism for your immediate acceptance of the revised Terms (such as a click-through confirmation or acceptance button). It is your responsibility to check these terms from time to time so you are aware of any changes, as they are binding on you. By continuing to use the Service after any such publication, you are agreeing to be bound by the then current version of the Terms. If you do not agree to the changes, then you must immediately stop using the Service.
Subject to your agreement to and continuing compliance with these Terms, Smartshare hereby grants you a personal, non-exclusive, non-assignable, non-transferable license to access and use the Service for your personal and non-commercial use only. You may not use the Service for any other purpose. Smartshare reserves any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Services comprise a limited license and do not constitute the sale of any software program.The following terms and conditions apply to you only if you accessed, downloaded or are using the App from the Apple App Store. To the extent the other terms and conditions of the Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and Smartshare, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and Smartshare acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Smartshare acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Smartshare, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and Smartshare acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
The license granted to you in Section 1 above is subject to the limitations as set forth in Sections 1 and 2 (collectively, the “License Limitations”). Any use of the Service in violation of the License Limitations or these Terms will be regarded as an infringement of Smartshare’s rights. The above granted license in Section 1 does not grant you the right to, and you hereby agree that you will not, under any circumstances:
A. download (other than through page caching necessary for personal use, or as otherwise expressly permitted by the Terms), modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Service, without Smartshare’s express prior written consent;
B. duplicate, decompile, reverse engineer, disassemble or decode the Service (including any underlying idea or algorithm), or attempt to do any of the same;
C. use, reproduce or remove any copyright, trademark, trade names, slogan, logos, images, service marks or other proprietary notations displayed on or through Service without prior written permission from Smartshare, or such third party that may own the trademark, trade name, slogan, logo, image, and service mark;
D. frame or utilize any framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout or form) of Smartshare without our express consent;
E. purchase search terms or use any meta tags or any other “hidden text” utilizing the Smartshare name or trademarks without our express consent;
F. use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Service;
G. exploit the Service for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
H. use the Service in any manner that could disable, overburden, damage, disrupt or impair the Service or interfere with any other party’s use of the Service or use any device, software or routine that causes the same;
I. attempt to gain unauthorized access to, interfere with, damage or disrupt the Service, accounts registered to other users, or the computer systems or networks connected to the Service;
J. circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Service;
K. use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Service to monitor, extract, copy or collect information from or through the Service, or any manual process to do the same;
L. introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
M. use the Service to impersonate or attempt to impersonate Smartshare, a Smartshare employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing) or otherwise misrepresent yourself;N. use the Service to ask users for their personal information;
O. use the Service for illegal, harassing, unethical, or disruptive purposes;
P. use the Service to upload, post, email, transmit, or otherwise make available any unlawful, inappropriate, defamatory, obscene, pornographic, vulgar, offensive, fraudulent, false, misleading, or deceptive Content or message;
Q. use the Service to promote or engage in discrimination, bigotry, racism, hatred, or harassment against any individual or group;
R. use the Service in any way that would affect us adversely or reflect negatively on us, the Service, our goodwill, our employees or moderators, our name or reputation, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Service, or from advertising, linking or becoming a supplier to us in connection with the Service;
S. use the Service to violate any applicable law or regulation in connection with your use of the Service; or
T. use the Service in any way not expressly permitted by the Terms.
During your use of the Service, remain aware of your surroundings and only use the Service in a safe and responsible manner.You agree that your use of the Services (including the App) is entirely at your own risk, and Smartshare is not liable or responsible for any personal or property damage incurred while using the Services. Without limiting the foregoing, you agree you will not:
A. trespass, or in any matter enter onto private property or locations where you do not have authorization to be without permission;
B. engage in any activity that may result in injury, death, property damage, and/or liability of any kind; or
C. encourage others to do any of the foregoing.
It is your responsibility to maintain such health, liability, personal injury, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services. Further, you agree and acknowledge that the Service is not intended to be used for navigational purposes.
As between Smartshare and you, Smartshare owns or otherwise has rights, title and interest in and to the Service and all of the content that appears on the Service that is your User Content (as defined below). You agree that you have no right, title or interest in or to the Service and any such content (other than your User Content), including without limitation any other attributes associated with any Account or stored on the Service. All software (including source code), logos, icons, the Service’s “look and feel,” text, graphics, images, video clips, sound clips, content, notices, data, page layout, and selection and arrangement of the content and all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein shall be owned solely and exclusively by Smartshare and/or its licensors and are protected by United States and international copyright, trade secret or other intellectual property laws and treaties. The compilation of all content and any software or other materials provided by Smartshare on the Service, or in connection with the Service, are the exclusive property of Smartshare and/or its licensors and are protected by United States and international copyright, trade secret or other intellectual property laws and treaties. Smartshare and its licensors reserve all rights in connection with the Service and its content (other than User Content), including, without limitation, the exclusive right to create derivative works therefrom. The Smartshare name, the Smartshare logo and all related names, logos, product and service names, designs and slogans are trademarks of the Smartshare or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Service, including but not limited to names and logos of various charities, are the property of their respective owners. The appearance of such names, logos, product and service names, designs and slogans on the Service does not indicate affiliation with, connection to, or sponsorship by Smartshare in any way. Any images of persons or personalities contained on the Service are not an indication or endorsement of Smartshare or any particular product or our Service unless otherwise indicated.
3. Your Content & Conduct
Our Service allows you and other users to post, link and otherwise make available content, including communications, images, sounds and all material or information, that you submit (e.g. by uploading or transmitting) to Smartshare or otherwise upload to the Service (collectively, “User Content”). User Content shall be deemed, and shall remain, your property from the moment of creation. Accordingly, you hereby grant Smartshare a perpetual, irrevocable, worldwide, paid-up, non-exclusive, license (including the right to sublicense to other users of the Service and third parties), and right to reproduce, fix, adapt, modify, translate, re-format, create derivative works from, introduce into circulation, publish, distribute, sell, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, such User Content, as well as all modified and derivative works thereof, in whole or in part, in any languages and in any media now known or not currently known, without any further notice or attribution to you, and without any requirement of permission from or payment to you (or any other person or entity). To the extent permitted by applicable laws, you hereby waive any moral rights you have in any User Content.You are responsible for the User Content that you make available to the Service, including its legality, reliability, and appropriateness. You can remove User Content that you posted by deleting it. Once you delete your User Content, it will not appear on the Service, but copies of your deleted content may remain in our system or backups for some period of time. We will retain web server access logs for a maximum of 90 Days and then delete them.You shall not (and shall not permit any third party to) create, upload, download, post, submit or otherwise distribute or facilitate distribution of any User Content on or through the Service (including while placing your order), that:
A. infringes any patent, trademark, trade secret, copyright, moral right, right of publicity, right of privacy, or other right of any other person or entity or violates any law or contractual duty (see our Notice of Infringement - DMCA policy below); for example, by reproducing song lyrics, poems, articles, logos, trademarks, pictures, photos, music or other material that is not owned by you (or which you do not have a license to reproduce on the Service);
B. is libelous, defamatory, bigoted, fraudulent or deceptive;
C. you know is false, misleading, untruthful or inaccurate;
D. constitutes unauthorized or unsolicited advertising, junk or bulk email;
E. humiliates or inflicts emotional distress on other people (public or otherwise);
F. is subject to any obligation or condition (including under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that could require or condition the use or distribution of such User Content or portion thereof on (i) the disclosure, licensing, or distribution of any source code for any portion of such User Content, or (ii) the granting to licensees of the right to make derivative works or other modifications to such User Content or portions thereof;
G. includes anyone’s identification documents or sensitive financial information.
H. is illegal or unlawful, that would otherwise create liability;
I. is mass or repeated promotions, political campaigning or commercial messages directed at users who do not follow you (SPAM);
J. contains private information of any third party (e.g., addresses, phone numbers, email addresses, Social Security numbers and credit card numbers); or
K. contains viruses, corrupted data or other harmful, disruptive or destructive files or code.
Also, you agree that you will not do any of the following in connection with the Service or other users:
A. Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service;
B. Collect any personal information about other users, or intimidate, threaten, stalk or otherwise harass other users of the Service;
C. Create an account or post any content if you are not over 13 years of age; or
D. Circumvent or attempt to circumvent any filtering, security measures, rate limits or other features designed to protect the Service, users of the Service, or third parties
4. Content Screening and Disclosure
5. Third Party Services, Websites, Apps or Resources
Anyone who believes that his or her work has been reproduced in the Service (including as User Content) in a manner which constitutes copyright infringement may submit a notification to Smartshare’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
identification of the copyrighted work that is claimed to be infringed;identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;information for our copyright agent to contact you, such as an address, telephone number, and, if available, email address;a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; anda physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail by email to email@example.com. Smartshare will respond expeditiously to claims of copyright infringement using the Service that are reported to Smartshare’s copyright agent in the notification explained above. It is Smartshare’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.
The Terms is effective until terminated. You may terminate the Terms by discontinuing your use of the Service and affirmatively cancelling all your Accounts on the Service.Smartshare reserves the right to terminate the Terms, and/or temporarily or permanently suspend, withdraw or restrict your access to some or all of your Account and/or the Service, at any time, effective immediately, with or without notice, for any or no reason whatsoever, including in the event of any conduct by you which Smartshare, in its sole discretion, considers to be unacceptable or a violation of the Terms or non-compliance with any of its terms. If Smartshare terminates or restricts your use and access of the Service, then you must immediately stop using all portions of the Service, delete the App from your mobile device, and return to Smartshare any downloaded materials in your possession, custody or control whether in electronic or printed format. Termination of these Terms for any reason shall not release either Smartshare or you from any liabilities or obligations set forth in these Terms which by their nature would be intended to be applicable following any termination (including any indemnification or payment rights or obligations for transactions that occurred prior to termination, any representations and warranties, and limitations of liability contemplated herein, and any dispute resolution provisions).
6. Warranty Disclaimer
THE SERVICE IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. NONE OF THE Smartshare PARTIES (AS DEFINED BELOW) MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR ACCURACY, COMPLETENESS, LIKELY RESULTS, RELIABILITY, INFORMATION, DATA, DATA PROCESSING, UPTIME OR UNINTERRUPTED OR ERROR-FREE ACCESS AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, NON-INFRINGEMENT, OR OTHER VIOLATIONS OF RIGHTS. NONE OF THE Smartshare PARTIES (AS DEFINED BELOW) ASSUME ANY RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES RELATED TO ANY VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT YOUR DEVICE IN CONNECTION WITH YOUR VIEWING OF OR ACCESS TO OR USE OF THE SERVICE. Smartshare DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE SERVICE, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS. YOU ARE RESPONSIBLE FOR ENSURING THE ACCURACY OF ANY USER CONTENT THAT YOU PROVIDE WHILE PLACING OR MODIFYING YOUR ORDER (INCLUDING, BUT NOT LIMITED TO, THE SPELLING OF ANY NAME OR OTHER CUSTOMIZATION REQUEST). WE ARE NOT RESPONSIBLE FOR CHECKING THE ACCURACY OR SPELLING OF YOUR ORDER AND WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR THE ACCURACY OF SUCH CONTENT.
7. Limitation of Liability
Smartshare IS NOT RESPONSIBLE FOR DAMAGES ARISING OUT OF YOUR USE OF THE SERVICE, including, but not limited to, any damages arising out of any information provided by the user, OR YOUR INABILITY TO USE THE SERVICE.
8. Indemnification; Equitable Remedies
9. ARBITRATION AND CLASS ACTION WAIVER
This Section includes an arbitration agreement (the “Arbitration Agreement”) and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the Arbitration Agreement by following the opt out procedure described below.A. Informal Process First. You agree that in the event of any dispute between you and Smartshare, you will first contact Smartshare and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.B. Arbitration Agreement. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of Smartshare’s services and/or products, including the Service, or relating in any way to the communications between you and Smartshare or any other user of the Service, will be finally resolved by binding arbitration. This mandatory Arbitration Agreement applies equally to you and Smartshare. However, this Arbitration Agreement does not (a) govern any Claim by Smartshare for infringement of its intellectual property or access to the Service that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this Arbitration Agreement within thirty (30) days of the first of the date you access or use this Service by following the procedure described below.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Smartshare are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send an email requesting arbitration and describing your claim to [Smartshare LLC], Subject: Legal Department, firstname.lastname@example.org. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. New York law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed or used the Service on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
If you do not want to arbitrate disputes with Smartshare and you are an individual, you may opt out of this Arbitration Agreement by sending an email to email@example.com within thirty (30) days of the first of the date you access or use the Service.
Class Action WaiverAny Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Smartshare each waive any right to a jury trial.
10. General Provisions
A. Export Restrictions. You agree that you will not export or re-export, directly or indirectly the Service and/or other information or materials provided by Smartshare hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
B. Assignment. Smartshare may assign the Terms, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Terms, or assign, sublicense, pledge, or otherwise transfer or share the benefit of any or all of your rights, if any, in the Service, and any attempt to the contrary is void.
C. Severability. If any provision of the Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions.
D. No Waiver. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
F. Headings. The section headings used herein are for reference only and shall not be read to have any legal effect.
If you have any questions, concerns or suggestions about these Terms, you may contact us at firstname.lastname@example.org