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 n