Terms of Service
Last updated 5/10/2011
You and we are independent contractors, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third-party beneficiaries of this Agreement. You may not assign this Agreement or your rights and obligations hereunder, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid. Should any part of this Agreement be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of this Agreement will not be considered a waiver of the right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
You represent that you are legally able to accept these Terms of Service. You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. And as stated in the Conditions for use of our Services, below, you affirm that you are, in any case, 13 years of age or older. If you aren't, you must please cease use of Smartvark.
Definition of our Services
Smartvark is an online service for people to find out about local merchants and their special offers made available via coupons, deals and events, referred to collectively as "Deals.” Smartvark users may use the Deals for themselves and share the information with their family and friends through our website located at Smartvark.com and other online areas owned or operated by us, such as our Facebook presence, Twitter presence, and mobile phone applications collectively referred to as the "Services".
The Services include the opportunity for you to access free Deals for products and services of third party merchants. These Deals are made available by local merchants (a “Merchant”) through Smartvark and our content providers. They are free to print and use and do not require you to provide us with any credit card information. They are available for your use according to their listed terms and conditions as well as the terms and conditions described below in this agreement.
Conditions for use of our Services
Your permission to use Smartvark is conditioned upon your agreement that you:
- are 13 years of age or older;
- will comply with these Terms of Service;
- will provide accurate information when creating an account or registering for our Services;
- are solely responsible for your User ID and the activity that occurs while signed in to or while using Smartvark using your User ID;
- will not use Smartvark to collect any personally identifiable information, including account names, email addresses, or other such information, for commercial purposes;
- will not use the communication systems provided by or contacts made on Smartvark for any commercial solicitation purposes;
- are solely responsible for your Content submissions, including discussion posts, profile information and links, pictures, and other such content;
- represent that you own or have the necessary licenses, rights, permissions, and consents to use and authorize Smartvark to use any and all Content submitted by you to Smartvark in accordance with the licenses granted in this Agreement;
- hereby grant each Smartvark user, whether using Smartvark or an application authorized by Smartvark but developed via a third-party developer, a non-exclusive license to access the Content you submit through Smartvark and to use, reproduce, distribute, prepare derivative works of, display and perform such Content as permitted through Smartvark's functionality and under these Terms of Service;
- will not submit Content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such Content to Smartvark; and
- hereby affirm we have the right to determine whether any of your Content submissions are appropriate and comply with these Terms of Service, remove any and/or all of your submissions, and terminate your account with or without prior notice.
It is our goal to make the use of our Services a good experience for all of our users, so you agree not to do any of the following:
- attempt to reverse engineer or jeopardize the correct functioning of the Services, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Services;
- attempt to gain access to secured portions of the Services to which you do not possess access rights;
- use the Services to generate unsolicited email advertisements or spam;
- use any automatic or manual process to search or harvest information from the Services, or to interfere in any way with the proper functioning of the Services; or
- impersonate another person or user
Smartvark account creation and maintenance
You will need to register by creating an account with Smartvark (either by registering directly with us or by allowing a Smartvark application to verify your identity through your Facebook profile) in order to publish Content on the Services or obtain access to certain Services, including Deals. If you choose to create an account or Smartvark profile with us, you agree to provide only accurate, complete registration information, and you will keep that information up-to-date if it changes. When you register, you will obtain unique log-in credentials (a “User ID”). Access to the Smartvark Services is not authorized by any other person or entity using your User ID and you are responsible for preventing such unauthorized use. Individuals and entities whose privilege to access the Services has previously been terminated by Smartvark may not register for an account, nor may you designate any of those individuals to use your account on your behalf.
Smartvark relies on User IDs to know whether users accessing our Services are authorized to do so. If someone accesses our Services using a User ID that we’ve issued to you, we will rely on that User ID and will assume that access has been made by you. You are solely responsible for any and all access to the Services by persons using your User ID. Please notify us immediately if you become aware that your User ID is being used without authorization.
Non-confidentiality & Privacy
You understand that much of the information that you submit to us (such as postings and invitations) is submitted precisely for the purpose of disclosure in a variety of ways by Smartvark, and therefore such information is not subject to any confidentiality obligation. You agree that information provided to us in connection with the redemption of a Deal, other than your credit card information, may be disclosed by us to the Smartvark Merchant for their commercial purposes.
You acknowledge that any communications between you and Smartvark, such as email or other correspondence, in which you offer suggestions or comments for improving or modifying our Services will be deemed by us to be non-confidential and non-proprietary, and you agree that such information may be used by us without any limitation whatsoever.
Consent to Electronic Communications
By using the Services, you consent to receiving electronic communications from Smartvark. These communications may include notices about your account and information concerning or related to the Service. You agree that any notices, agreements, disclosures, or other communications that Smartvark sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Smartvark is a publisher
Users hereby agree and understand that Smartvark and related companies are mere publishers of information. Any Deal, promotion or similar marketing or advertisement is offered solely by the independently owned and operated merchant. Any statement or representation of any of the independently owned and operated merchants are made exclusively by the specific merchant and any complaint or claim must be made against that merchant and not Smartvark or their related companies. In the event you discover any Deal, promotion or similar marketing or advertisement that is in any way inaccurate or not what you expected from said offer of merchant please contact us in writing. Though Smartvark and related companies are mere publishers of information they will attempt to relay information to merchant. Smartvark and related companies are not a mediator and shall have no obligation to take any action. Customer hereby agrees and understands that the intellectual property rights, including but not limited to trademarks and copyrights of each merchant, are the respective rights of that specific merchant and that no right or claim to any right to the intellectual property right shall be made by customer or user of these Services. Customer hereby agrees and accepts that no claim to any intellectual property right is being made by anyone other than the specific merchant offering a promotion, advertisement, Deal or similar offer.
Links to third-party sites
The Services may contain links to third-party websites or resources. You acknowledge and agree that we are 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 Smartvark 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.
Smartvark respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) 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; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you 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 (vi) 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 copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Smartvark will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Services is firstname.lastname@example.org
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California 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 Los Angeles County, California, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. If you are accepting these Terms on behalf of a United States federal government entity that is legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you but instead these Terms and any action related thereto will be 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 California (excluding choice of law).
You will defend, indemnify and hold harmless Smartvark, its subsidiaries and affiliates, and their respective directors, officers, agents, employees, licensors, and suppliers from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys' fees) arising out of or related to your use of the Service, your violation of these Terms, or your violation of any rights of a third party.
Disclaimer of Warranties
YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT ACCESSIBLE THROUGH THE WEBSITE AND YOUR INTERACTIONS AND DEALINGS WITH ANY SERVICE USERS, IS AT YOUR SOLE RISK. THE SERVICE, AND ALL CONTENT AVAILABLE ON AND THROUGH THE WEBSITE OR SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Smartvark AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Smartvark DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICE OR YOUR ACCESS TO ANY CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE WILL CREATE ANY WARRANTY REGARDING Smartvark THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
NEITHER Smartvark NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF Smartvark OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE MAXIMUM TOTAL LIABILITY OF Smartvark AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ALL CLAIMS UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS $100. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Entire Agreement, Changes to this Agreement and Waivers