PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Terms of Service Agreement (this “Agreement”) is entered into by and between Smartly Built LLC., a New York, NY corporation (“SB”) and You, and is made effective as of the date of Your use of this website (“Site”) or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of Your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”), including web hosting, website design, web blog posting services (“Growth Platform”), and customer support.
Whether You are simply browsing or using this Site or purchase Services, Your use of this Site and Your electronic acceptance of this Agreement signifies that You have read, understand, acknowledge and agree to be bound by this Agreement.
The terms “we”, “us” or “our” shall refer to SB. The terms “You”, “Your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to Your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
SB may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute Your acceptance of this Agreement as last revised. If You do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, SB may occasionally notify You of changes or modifications to this Agreement by email. It is therefore very important that You keep Your account (“Account”) information current. SB assumes no liability or responsibility for Your failure to receive an email notification if such failure results from an inaccurate email address.
This Site and the Services are available only to Users who can form legally binding contracts under applicable law. By using this Site or the Services, You represent and warrant that You are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, and (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction. If You are entering into this Agreement on behalf of a corporate entity, You represent and warrant that You have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “You”, “Your”, “User” or “customer” shall refer to such corporate entity. If, after Your electronic acceptance of this Agreement, SB finds that You do not have the legal authority to bind such corporate entity, You will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. SB shall not be liable for any loss or damage resulting from SB’s reliance on any instruction, notice, document or communication reasonably believed by SB to be genuine and originating from an authorized representative of Your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, SB reserves the right (but undertakes no duty) to require additional authentication from You. You further agree to be bound by the terms of this Agreement for transactions entered into by You, anyone acting as Your agent and anyone who uses Your account or the Services, whether or not authorized by You.
You agree to cooperate fully with SB in connection with SB’s provision of the Services. It is solely Your responsibility to provide any equipment or software that may be necessary for Your use of the Services. To the extent that the performance of any of our obligations under this Agreement may depend upon Your performance of Your obligations, SB is not responsible for any delays due to Your failure to timely perform Your obligations.
You are solely responsible for ensuring that all Your content is compatible with the hardware and software used by SB to provide the Services, which may be changed by SB from time to time in our sole discretion.
You are solely responsible for the accuracy of any blog posts (“Articles”) You publish using the Growth Platform, including any edits You make to the Articles. You further agree to indemnify SB for any liability related to any Articles You post, including, but not limited to SB’s legal fees. SB is not responsible for any search engine rankings based on Your publishing of the Articles.
SB engineers maintain three (3) backups of Your website under the Services at regular intervals, according to its commitment to provide reliability to You. However, You are solely responsible for backing up all Your content, including but not limited to, Your websites. SB does not warrant that we will have a back up any content, and You agree to accept the risk of loss of any and all Services content.
In connection with SB’s provision of technical support, training and other Services, You agree that we may remotely log-in to Your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical troubleshooting, answering questions, benchmarking and providing training to You or Your personnel. Remote login may be conducted through the use of third party entities. You further agree that we may also remotely log-in at any time to Your website as necessary or appropriate to maintain SB’s Services
You agree that we may automatically check the version of a Service that You are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to Your computers and systems.
You agree to keep Your computers powered on during the Services runtimes that You specify. You must add us or SB’s third party affiliate to the “allowed” list of programs and ensure that Your firewall and anti-virus software programs do not block us. Additionally, we may request temporary access to Your practice management software in order to integrate certain functionalities under the Services. If that is required, SB agrees to sign a Business Associate Agreement (BAA) with You.
In order to access some of the features of this Site or use SB’s Services, You will have to create an Account. You represent and warrant to SB that all information You submit when You create Your Account is accurate, current and complete, and that You will keep Your Account information accurate, current and complete. If SB has reason to believe that Your Account information is untrue, inaccurate, out-of-date or incomplete, SB reserves the right, in its sole and absolute discretion, to suspend or terminate Your Account.
You are responsible for maintaining the security of Your account and site, and You are fully responsible for all activities that occur under the account and any other actions taken in connection with the site. You must notify SB immediately of any breach of security or unauthorized use of Your Account. SB will not be liable for any loss You incur due to any unauthorized use of Your Account. You, however, may be liable for any loss SB or others incur caused by Your Account, whether caused by You, or by an authorized person, or by an unauthorized person.
If You are visiting this Site from a country other than the country in which our servers are located, Your communications with us may result in the transfer of information (including Your Account information) across international boundaries. By visiting this Site and communicating electronically with us, You consent to such transfers.
Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to You or any other party with regard thereto.
You acknowledge and agree that:
SB reserves the right to modify, change, or discontinue any aspect of this Site or the Services, including without limitation prices and fees for the same, at any time.
SB maintains a strong security maintenance program under the Services. However, You maintain responsibility for all activities that occur under the account and any other actions taken in connection with the site. You must immediately notify SB of any unauthorized uses of Your site, Your account or any other breaches of security. SB will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions. You also agree not to circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any SB Content) or enforce limitations on the use of this Site or the Services found at this Site and the SB Content therein.
Some of the features of this Site or the Services may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). You shall be solely responsible for any and all of Your User Content or User Content that is submitted through Your Account, and the consequences of, and requirements for, distributing it. By posting or publishing User Content to this Site or to the Services, You represent and warrant to SB that (i) You have all necessary rights to distribute User Content via this Site or via the Services, either because You are the author of the User Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You must not describe or assign keywords on a website created under the Services in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and SB may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause SB liability.
SB generally does not pre-screen User Content (whether posted to a website hosted by SB or posted to this Site). However, SB reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. SB may remove any item of User Content (whether posted to a website hosted by SB or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by SB in its sole and absolute discretion), at any time and without prior notice. SB may also terminate a User’s access to this Site or the Services found at this Site if SB has reason to believe the User is a repeat offender. If SB terminates Your access to this Site or the Services found at this Site, SB may, in its sole and absolute discretion, remove and destroy any data and files stored by You on its servers.
SB holds a limited use license from Big Stock Photo for up to ten photographs per site under the Services . This limited use license is non-transferrable to You; if Services are terminated or discontinued, it is up to You to seek out any and all necessary licenses from Big Stock Photo and any other content provided under the Services. It is Your responsibility to read and understand the complete terms of the limited use license for content originating from Big Stock Photo, available here. If You request additional photographs, it is Your responsibility to ensure You have the full rights to use the photographs for their intended purpose and SB is absolved of all legal issues that may arise due to Client asking SB to utilize an image without Client owning the full rights to said image.
For any additional photographs You add to Your website after the Domain Name’s servers point to SB, it is Your responsibility to ensure You have the full rights to use the photographs for their intended purpose and SB is absolved of all legal issues that may arise due to Client utilizing an image without the full rights to said image
Some of SB’s Services may require You to give us access to or require You to provide login information and password information for accounts or services You may have with third party providers. When You provide this information to SB or give SB access to these third party accounts, You agree that You have read all contracts and written agreements governing such access, login information and passwords and that You have all the necessary contractual and legal rights to give us such access, login information and passwords. In addition, for certain Services, You grant SB permission to create and submit content on Your behalf to press release news outlets, directories, search engines, social media outlasts, and other destinations.
SB expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by SB in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by SB in offering or delivering any Services (including any domain name registration), (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry, (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against You and/or Your domain name or website and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of SB, its officers, directors, employees and agents, as well as SB’s affiliates, including, but not limited to, instances where You have sued or threatened to sue SB.
SB expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
SB expressly reserves the right to terminate, without notice to You, any and all Services where, in SB’s sole discretion, You are harassing or threatening SB and/or any of SB’s employees.
No Spam. We do not tolerate the transmission of spam. We monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation. We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications. This can include, but is not limited to, the following:
We will not allow our servers and services to be used for the purposes described above. In order to use our products and services, You must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but You must also abide by this no spam policy. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by us, conclusive proof of opt-in may be required for an email address or fax number.
If we determine the Services are being used in association with spam, we will re-direct, suspend, or cancel any web site hosting, domain registration, email boxes or other applicable services for a period of no less than two (2) days. The registrant or customer will be required to respond by email to us stating that they will cease to send spam and/or have spam sent on their behalf. We will require a non-refundable reactivation fee to be paid before the site, email boxes and/or services are reactivated. In the event we determine the abuse has not stopped after the Services have been restored the first time, we may terminate the hosting and email boxes associated with the domain name in question.
We encourage You and recipients of email generated from our Services to report suspected spam.
Liquidated Damages. You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your Account.
This Agreement does not transfer, from SB to You, any SB or third party intellectual property, including, but not limited to any logos designed or authored by SB for you under the Services, and any Articles published using the Growth Platform. All right, title and interest in and to such property will remain (as between the parties) solely with SB. SB, smartlybuilt.com, the smartlybuilt.com logo, and all other trademarks, service marks, graphics and logos used in connection with smartlybuilt.com, or the Website are owned by SB. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants You no right or license to reproduce or otherwise use any SB or third-party trademarks.
SB supports the protection of intellectual property. If You would like to submit (i) a trademark claim for violation of a mark on which You hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which You hold a bona fide copyright, SB has established to following policies for considering trademark and/or copyright infringement claims.
A. Domain Name Dispute Claims (As Approved by ICANN on October 24, 1999)
This Uniform Domain Name Dispute Resolution Policy (the “Policy”) has been adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”), is incorporated by reference into Your Registration Agreement, and sets forth the terms and conditions in connection with a dispute between You and any party other than us (the registrar) over the registration and use of an Internet domain name registered by You. Proceedings under Paragraph 13(A)(iv) of this Policy will be conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules of Procedure”), which are available here, and the selected administrative-dispute-resolution service provider’s supplemental rules.
ii. Your Representations
By applying to register a domain name, or by asking us to maintain or renew a domain name registration, You hereby represent and warrant to us that (a) the statements that You made in Your Registration Agreement are complete and accurate; (b) to Your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) You are not registering the domain name for an unlawful purpose; and (d) You will not knowingly use the domain name in violation of any applicable laws or regulations. It is Your responsibility to determine whether Your domain name registration infringes or violates someone else’s rights.
iii. Cancellations; Transfers; Changes
We will cancel, transfer or otherwise make changes to domain name registrations under the following circumstances:
We may also cancel, transfer or otherwise make changes to a domain name registration in accordance with the terms of Your Registration Agreement or other legal requirements.
iv. Mandatory Administrative Proceeding
This Paragraph sets forth the type of disputes for which You are required to submit to a mandatory administrative proceeding. These proceedings will be conducted before one of the administrative-dispute-resolution service providers listed here (each, a “Provider”).
A. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a “complainant”) asserts to the applicable Provider, in compliance with the Rules of Procedure, that
In the administrative proceeding, the complainant must prove that each of these three elements is present.
B. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 13(A)(iv)(A)(3), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
C. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint. When You receive a complaint, You should refer todo Paragraph 5 of the Rules of Procedure in determining how Your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate Your rights or legitimate interests to the domain name for purposes of Paragraph 13(A)(iv)(A)(2):
D. Selection of Provider. The complainant shall select the Provider from among those approved by ICANN by submitting the complaint to that Provider. The selected Provider will administer the proceeding, except in cases of consolidation as described in Paragraph 13(A)(iv)(F).
E. Initiation of Proceeding and Process and Appointment of Administrative Panel. The Rules of Procedure state the process for initiating and conducting a proceeding and for appointing the panel that will decide the dispute (the “Administrative Panel”).
F. Consolidation. In the event of multiple disputes between You and a complainant, either You or the complainant may petition to consolidate the disputes before a single Administrative Panel. This petition shall be made to the first Administrative Panel appointed to hear a pending dispute between the parties. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by ICANN.
G. Fees. All fees charged by a Provider in connection with any dispute before an Administrative Panel pursuant to this Policy shall be paid by the complainant, except in cases where You elect to expand the Administrative Panel from one to three panelists as provided in Paragraph 5(b)(iv) of the Rules of Procedure, in which case all fees will be split evenly by You and the complainant.
H. Our Involvement in Administrative Proceedings. We do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, we will not be liable as a result of any decisions rendered by the Administrative Panel.
I. Remedies. The remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of Your domain name or the transfer of Your domain name registration to the complainant.
J. Notification and Publication. The Provider shall notify us of any decision made by an Administrative Panel with respect to a domain name You have registered with us. All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.
K. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 13(A)(iv) shall not prevent either You or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that Your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel’s decision before implementing that decision. We will then implement the decision unless we have received from You during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that You have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure (In general, that jurisdiction is either the location of our principal office or of Your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.)If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel’s decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that Your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing Your lawsuit or ordering that You do not have the right to continue to use Your domain name.
v. All other disputes and litigation
All other disputes between You and any party other than us regarding Your domain name registration that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 13(A)(iv) shall be resolved between You and such other party through any court, arbitration or other proceeding that may be available
vi. Our Involvement in Disputes
We will not participate in any way in any dispute between You and any party other than us regarding the registration and use of Your domain name. You shall not name us as a party or otherwise include us in any such proceeding. In the event that we are named as a party in any such proceeding, we reserve the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend ourselves.
vii. Maintaining the Status Quo
We will not cancel, transfer, activate, deactivate, or otherwise change the status of any domain name registration under this Policy except as provided in Paragraph 13(A)(iii) above.
viii. Transfers During a Dispute
Transfers of a Domain Name to a New Holder. You may not transfer Your domain name registration to another holder (i) during a pending administrative proceeding brought pursuant to Paragraph 13(A)(iv) or for a period of fifteen (15) business days (as observed in the location of our principal place of business) after such proceeding is concluded; or (ii) during a pending court proceeding or arbitration commenced regarding Your domain name unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator. We reserve the right to cancel any transfer of a domain name registration to another holder that is made in violation of this subparagraph.
Changing Registrars. You may not transfer Your domain name registration to another registrar during a pending administrative proceeding brought pursuant to Paragraph 13(A)(iv) or for a period of fifteen (15) business days (as observed in the location of our principal place of business) after such proceeding is concluded. You may transfer administration of Your domain name registration to another registrar during a pending court action or arbitration, provided that the domain name You have registered with us shall continue to be subject to the proceedings commenced against You in accordance with the terms of this Policy. In the event that You transfer a domain name registration to us during the pendency of a court action or arbitration, such dispute shall remain subject to the domain name dispute policy of the registrar from which the domain name registration was transferred.
ix. Policy Modifications
We reserve the right to modify this Policy at any time with the permission of ICANN. We will post our revised Policy at this location at least thirty (30) calendar days before it becomes effective. Unless this Policy has already been invoked by the submission of a complaint to a Provider, in which event the version of the Policy in effect at the time it was invoked will apply to You until the dispute is over, all such changes will be binding upon You with respect to any domain name registration dispute, whether the dispute arose before, on or after the effective date of our change. In the event that You object to a change in this Policy, Your sole remedy is to cancel Your domain name registration with us, provided that You will not be entitled to a refund of any fees You paid to us. The revised Policy will apply to You until You cancel Your domain name registration.
B. Copyright and Trademark Claims
To notify SB that there has been a copyright or trademark violation, please follow the specific instructions in (A) for filing a trademark claim, or (B) filing a copyright complaint. If You are responding to a complaint of infringement, You will need to follow our Counter Notification policy in (C).
i. Trademark Claims
If You (the “Complaining Party”) would like to submit a trademark claim for violation of a mark on which You hold a valid, registered trademark or service mark (registered with the United States Patent and Trademark Office on the Principal Register or, for foreign marks, registered with the appropriate intellectual property organization of Your country; state registrations and registrations on the Supplemental Register are not considered valid for these purposes), SB requests that the Complaining Party substantiate such claim by either: (i) filling out the form available here, or (ii) providing the following information via email to firstname.lastname@example.org. The words “Trademark Claim” should appear in the subject line.
To be considered effective, a notification of a claimed trademark violation must include the following information:
i. The content of the website (identify website) infringes the rights of another party,
ii. The name of such said party,
iii. The mark (identify mark) being infringed, and
iv. That use of the content of the website claimed to be infringing at issue is not defensible.
Upon receipt of the appropriate information identified in Section 13(B)(i) above, for trademark claims, SB will initiate an investigation and forward the Complaining Party’s written notification to the alleged infringer. While SB is investigating the claim, SB, at its sole discretion and without any legal obligation to do so, may temporarily remove the allegedly infringing material from the Site, notify the alleged infringer it will lock down the domain name(s), redirect the DNS, and/or if it is solely stored on a SB server, temporarily remove or deny access to the allegedly infringing material.
If SB concludes that the Complaining Party has raised a legitimate trademark claim, it may, at its sole discretion and without any legal obligation to do so, permanently remove the challenged material from the Site, continue to suspend the alleged infringer’s SB account and/or if it is solely stored on a SB server, deny access to the allegedly infringing material. If SB concludes that the Complaining Party has not raised a legitimate claim, SB will restore access to the allegedly infringing material.
The Complaining Party should understand that SB, an ICANN accredited registrar, and its customers are bound by the UDRP. Nothing in this Policy should be construed to supersede the UDRP, nor the obligation of SB and its customers to abide by it in the context of domain name disputes.
ii. Copyright Claims
SB is a DMCA Compliant Service Provider under the Digital Millennium Copyright Act (DMCA). If the Complaining Party would like to submit a copyright claim for material on which You hold a bona fide copyright, SB requests that the Complaining Party substantiate such claim by providing SB with the following information via email to email@example.com. The words “Copyright Claim” should appear in the subject line. A copyright claim can also be submitted by mail to: Copyright Agent, 175 Adams St. Suite 9F, Brooklyn, NY 11201
To be considered effective, a notification of a claimed copyright infringement must be provided to SB and must include the following information:
For Copyright Claims, upon receipt of appropriate notification from the Complaining Party, pursuant to this Section, SB will initiate an investigation and forward the Complaining Party’s written notification to the alleged infringer. While SB is investigating the claim, SB, at its sole discretion and without any legal obligation to do so, may notify the alleged infringer it will lock down the domain name(s), redirect the DNS, and/or if it is solely stored on a SB server, temporarily remove or deny access to the allegedly infringing material.
If SB concludes that the Complaining Party has raised a legitimate copyright claim, it will continue to suspend the alleged infringer’s SB account and/or if it is solely stored on a SB server, deny access to the allegedly infringing material. If SB concludes that the Complaining Party has not raised a legitimate claim, SB will restore access to the allegedly infringing material.
iii. Counter Notification Policy
If You have received a notice of copyright or trademark infringement that You wish to challenge based on a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled, You may provide Counter Notification by emailing firstname.lastname@example.org and including the following:
iv. Repeat Infringers
It is SB’s policy to provide for the termination, in appropriate circumstances, of SB customers and account holders who repeatedly violate this policy or are repeat infringers of copyrighted works, trademarks or any other intellectual property.
This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by SB. SB assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, SB does not censor or edit the content of any third-party websites. By using this Site or the Services found at this Site, You expressly release SB from any and all liability arising from Your use of any third-party website. Accordingly, SB encourages You to be aware when You leave this Site or the Services found at this Site and to review the terms and conditions, privacy policies, and other governing documents of each other website that You may visit.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. SB, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SB, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND SB ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SB, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND shall survive any termination or expiration of this Agreement or Your use of this Site or the Services found at this Site.
IN NO EVENT SHALL SB, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SB IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, You SPECIFICALLY ACKNOWLEDGE AND agree that any cause of action arising out of or related to this Site or the Services found at this Site must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.
IN ADDITION, You SPECIFICALLY ACKNOWLEDGE AND agree that in no event shall SB’s total aggregate liability exceed the total amount paid by You for the particular Services that are the subject of the cause of action.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND shall survive any termination or expiration of this Agreement or Your use of this Site or the Services found at this Site.
You agree to protect, defend, indemnify and hold harmless SB and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by SB directly or indirectly arising from (i) Your use of and access to this Site or the Services found at this Site; (ii) Your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; (iii) any Article You publish using the Growth Platform, and/or (iv) Your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or Your use of this Site or the Services found at this Site.
General Terms. Paid services are available on the Website. By selecting a paid service You agree to pay SB the monthly or annual subscription fees indicated for that service. Payments will be charged on a pre-pay basis on the day You sign up for a paid service and will cover the use of that service for a monthly or annual subscription period as indicated.
Even though we think we’re the best website solution for Restaurants, we understand that Smart Restaurant isn’t for everyone. However, as we are a service-based business and spend a substantial amount of time learning about You, Your business and building You a custom website, our ability to offer refunds is limited.
For monthly subscribers, we are unable to offer refunds at this time. For annual subscribers, if You decide Smart Restaurant is not the right solution for You before Your first draft is built, we will refund Your full amount, minus the setup fee, first month and a $100 cancellation fee.
Unless You notify SB before the end of the applicable subscription period that You want to cancel a service, Your subscription will automatically renew and You authorize us to collect the then-applicable annual or monthly subscription fee for such service using any credit card or other payment mechanism we have on record for You. Services can be canceled at any time by emailing Smartly Built at email@example.com.
Email Address(es). Included in your Website and single membership with SB are two (2) Email Addresses. Additional Email Addresses can be added to the Website and single membership for $3 per Additional Email Address per month.
Adding and Removing Websites on One Account. At additional cost, customers can add multiple websites associated under their single membership with SB. The cost of membership is charged on a per website basis. Customers will be charged once per month for ALL websites that have been added to their account. When a website is added or removed from a customer’s account, the service charge is pro-rated accordingly and reflected on the next charge.
Growth Platform Articles. At additional cost, Customers can publish Articles to a location on their Site using the Growth Platform. Customers will be charged a monthly Article fee for the number of Articles published per month. The monthly Article fee will renew automatically until canceled as described above.
We are not “HIPAA compliant.”
You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. SB does not control or monitor the information or data You store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” as defined under HIPAA are expressly prohibited from using the Services for such purposes. Storing and permitting access to “protected health information” is a material violation of this Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and You agree that SB is not a Business Associate or subcontractor or agent of Yours pursuant to HIPAA. If You have questions about the security of Your data, You should contact firstname.lastname@example.org.
White Label Partner Program. Customers of SB are permitted to resell the services to their own clients. This is also known as the White Label Partner Program. Customers who resell SB services are held to the same terms and conditions as all other SB users and customers. White Label Partner Program Customers who resell website services to their own clients are responsible for managing and administering all business relationships with those clients. The membership and subscription terms between Partner Program Customers and SB is not affected in any way by any dealings between the Partner Program Customer and their client. Customers who resell the services of SB to their own clients acknowledge and accept the following:
Resellers may create a website to promote their services to potential clients. SB provides a selection of images in the White Label Partner Kit that Resellers may include in their website. SB also provides a website template available for use to Resellers. Resellers are not permitted to copy, replicate, mimic, or plagiarize any part of smartlybuilt.com on their own website. The design, layout, text, headlines, copy, blog articles, and videos found on smartlybuilt.com may not under any circumstances be copied and used on a Reseller’s website. Resellers who copy, replicate, or plagiarize content from smartlybuilt.com may be subject to termination from the program.
If a Reseller violates any of the policies outlined in these terms and conditions, their membership may be terminated. If terminated, the reseller’s clients’ websites will be deactivated and cancelled.
If You send a potential client to SB and they become a SB client, You are entitled to 100% of the first month’s free ($59) as an Account Credit. Account Credits do not extend to chargebacks and refunds. The potential client must expressly communicate to SB that they are a referral from You. Your Account Credit will be made ninety (90) days after the referral customer’s signup and will only be made if the referred customer’s account is still current and active on the ninetieth (90th) day.
SB and You are independent contractors and nothing contained in this Agreement places SB and You in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
This Site and the Services found at this Site are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services found at this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this Site and the Services found at this Site, You agree to the foregoing and represent and warrant that You are not a national or resident of, located in, or under the control of, any restricted country; and You are not on any denied parties list; and You agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If You access this Site or the Services found at this Site from other countries or jurisdictions, You do so on Your own initiative and You are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, You shall not access this Site or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or Your use of this Site or the Services found at this Site.
SB makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, OR THE MATERIALS, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICES AND THE MATERIALS. UNDER NO CIRCUMSTANCE WILL COMPANY, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to You.
Except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced above and available here, this Agreement shall be governed by and construed in accordance with the federal law of the United States and the state law of New York, NY, whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Kings County, New York, NY, and You hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of Kings County, New York, NY. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
The Website may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production and marketing of products and services that incorporate such information
If You have any questions about this Agreement, please contact us by email or regular mail at the following address:
Smartly Built LLC.
175 Adams St. Suite 9F, Brooklyn, NY 11201