YOU AGREE THAT BY USING OUR SITE YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT.
We may refer to you or any individual that uses our Site as "you" or "your" or a "user." If we use the term "Our Companies," in addition to us, that term means and includes our agents, representatives, subsidiaries, affiliated companies, select unaffiliated companies, assigns, and brands that are owned by, licensed by, and/or partnering with The Smarty Sampler.
When we use the term "Site" we mean all website(s) or online solution functionality or services offered through the individual URL or Internet address locations, sites and pages within the thesmartysampler.com domain (including all backups, mirror, replacement and substitutes). Unless otherwise noted, when we use the term "Site," we are including all the content, text, information, images, graphics, postings, files, documents, multimedia materials, software, code, data, logos, brands, service and trademarks, the "look and feel", as well as the selection and arrangement of items, all copyrightable or otherwise legally protectable items and elements and all of the various features, functions and services in, on or associated with our Site and we will use the term "Content" when we refer to them separately. When we use the term "Services" we mean any services provided as an online functionality or feature of the Site.
RULES OF CONDUCT
You may never use, allow or enable others to use our Site or knowingly condone use of our Site to do or attempt to:
- Violate any applicable federal or state laws, regulations, judicial or governmental order, treaties or our rights or the rights of any other person, firm, or enterprise;
- Engage in conduct which is or could be considered libelous, defamatory, indecent, vulgar, obscene, pornographic, sexually explicit or sexually suggestive, racially or ethically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive;
- Impersonate or attempt to impersonate The Smarty Sampler, The Smarty Sampler’s employees, or any other person, firm, or enterprise;
- Use the Site for posting or otherwise using malicious or unauthorized code (e.g. viruses, time bombs, cancel bots, worms, Trojan horses, spyware) or other potentially harmful material or information which in any way might interrupt, damage, interfere with, destroy, or limit the functionality of any computer software or hardware or communication equipment;
- Violate, or attempt to violate any security features of the Site or Service;
- Attempt to modify, reverse engineer, decompile, disassemble, or otherwise reduce or attempt to reduce any of the source code that we use in providing the Site or Service to a human-perceivable form;
- Collect, obtain, compile, gather, transmit, reproduce, delete, revise, view, or display any material or information, whether personally identifiable or not, submitted, provided, or made available by or concerning any other person, firm, or enterprise;
- Advocate or encourage conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer or database connected to the Site;
- Otherwise attempt to interfere with the proper working of the Site.
INTELLECTUAL PROPERTY RIGHTS
The Site and its entire contents, features and functionality, including, but not limited to all information, text, displays, photographs, graphics, video and audio, and the design, selection and arrangement thereof ("The Smarty Sampler Content"), are owned by, licensed by, or provided to The Smarty Sampler. The Site is protected by copyright, trademark, trade secret, and other intellectual property or proprietary rights laws, and thus, we own and retain all rights in the The Smarty Sampler Content and the Service.
POSTING AND SUBMITTING USER CONTENT
We have no obligation, nor do we verify, review for accuracy, completeness or otherwise, any User Content. We also have no obligation to monitor or continue to monitor your use of the Site or your User Content, but we reserve the right to do so and to confirm and request confirmation of any information you submit to us or on our Website, at any time for any reason or no reason at all. We do not endorse User Content, nor do we screen them.
Your User Content and/or your account are your responsibility, although we ask that you notify us if you know or suspect the security of your user identification, log-in and password may have been compromised so that we can take responsive action. But, in general, you are solely responsible for activities undertaken through your registration, profile, user account or login identification or password and you will defend and indemnify us (see the Section entitled "You Indemnify Us") for any User Content submitted, displayed, use, or transferred under the foregoing. In accordance with the foregoing, if you suspect that your log-in identification or password may have been compromised, please notify us immediately at [email protected]
OUR RIGHT TO USER CONTENT
- Giving us a non-exclusive, irrevocable, unconditional, transferable, perpetual, worldwide, royalty free license and right to use, display, reproduce, perform, adapt, translate, modify, create derivative works from, publish, distribute, disseminate and broadcast the User Content in connection with your use of the Site without additional accounting to you or notifying you in any way; and
- Representing and warranting to us you have the right to submit the User Content and grant the rights and license described above.
If anyone else has or may have rights to the User Content you are submitting, it is your responsibility to find out and obtain whatever agreements, licenses and rights you need from them to do so, because if and when you submit Content to us, you will be solely responsible and liable and you will defend and indemnify us (See the Section entitled "You Indemnify Us").
On notice, we will act expeditiously to remove Content that infringes the copyright rights of others and we will use reasonable efforts to disable use of our Site by anyone who repeatedly infringes the rights of others. If you believe our Site contains elements that infringe any copyright of yours or anyone else’s, please follow the procedures set forth below in our Notice and Procedure for Making Claims of Copyright Infringement.
From time to time we may offer sweepstakes, contests, or other similar promotions ("Promotions"). Promotions vary and may require you to submit information about yourself to us. Each Promotion has its own Terms and Conditions, which govern your participation in the Promotion. You must read and agree to these separate Terms and Conditions before entering into any such Promotion.
THIRD PARTY CONTENT AND LINKS FROM THE SITE
If the Site contains links to other sites and resources provided by third parties, such links are provided for convenience purposes only. This includes links contained in advertisements, banner advertisements, and sponsored links. We have no control over, and no liability for any third party websites or materials. We work with a number of partners and affiliates whose Internet sites may be linked with the Site. Because neither we nor our Site has control over the content and performance of these partner and affiliate sites, we make no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites.
THIRD PARTY MERCHANTS
The Smarty Sampler contains many Offers from third party partners and affiliates which may allow you to order, receive, or redeem various products and services by business that are not owned or operated by us. The delivery, guarantee, maintenance, and all other matters concerning your transactions with these businesses are solely between you and such businesses. We do not endorse, warrant, or guarantee any such third party Offers and we are not liable for the accuracy, completeness, or usefulness of such information or the availability of any Offers.
TERM AND TERMINATION
WE HAVE THE RIGHT TO TERMINATE
YOU INDEMNIFY US
DISCLAIMERS AND LIMITATION OF LIABILITY
OUR SITE IS MADE AVAILABLE "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO GUARANTY OR ASSURANCE THAT ALL OR ANY PART OF OUR SITE WILL BE AVAILABLE FOR USE, PERFORM AS DESCRIBED OR THAT OUR SITE IS ACCURATE, TIMELY, COMPLETE OR ERROR FREE AND YOU SHOULD NOT RELY ON OUR SITE FOR ANY DECISIONS OR ACTIONS YOU MAY OR MAY NOT CHOOSE TO MAKE OR TAKE. WE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DAMAGE TO YOU OR YOUR PROPERTY, EVEN IF DUE TO MALICIOUS OR UNAUTHORIZED CODE. YOU ARE SOLELY RESPONSIBLE FOR ENSURING YOU HAVE APPROPRIATE MECHANISMS TO PROTECT AND SECURE YOUR EQUIPMENT, PROGRAMS AND INFORMATION BECAUSE YOU, NOT US, ARE ASSUMING ALL RISK OF LOSS OR DAMAGE THAT MAY ARISE OR BE ASSOCIATED WITH USE OF OUR WEBSITE.
OUR LIABILITY TO YOU IS LIMITED. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL LIABILITY FOR LOSS, DAMAGE, COST AND/OR EXPENSE OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORM OF ACTION OR BASIS OF THE CLAIM AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES) IN CONNECTION WITH OR ARISING FROM USE OF OUR SITE OR ANY OTHER MATERIALS OR SERVICES WE PROVIDE TO YOU.
SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF CERTAIN WARRANTIES OR LIMITATIONS ON CERTAIN DAMAGES, SO SOME OF THESE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. HOWEVER, IF ANY LIMITATION OR EXCLUSION OF DAMAGES OR LIABILITY IS PROHIBITED OR RESTRICTED BY LAW, WE SHALL BE ENTITLED TO THE MAXIMUM LIMITATIONS AND EXCLUSIONS PERMITTED; HOWEVER, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100).
ARBITRATION AND CLASS ACTION WAIVER
You agree to first contact us at [email protected] for any dispute or controversy so as to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the use of the Site or Service that cannot be resolved through such informal process or through negotiation within 120 days shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered may be entered in any court having jurisdiction thereof. The arbitration will be conducted in the English language in the city of San Diego, California by a single neutral arbitrator.
You agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. If for any reason this arbitration clause is unenforceable or inapplicable, both you and we agree, to the extent permissible by law, to waive any right to pursue any claims on a class action basis. If any portion of this class action waiver is limited, void, or unenforceable, then our agreement to arbitrate under this section will not apply and any controversy or claim must be brought exclusively in the state and federal courts in San Diego, California.
Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by us or by any third party.
THIS SITE IS FOR UNITED STATES USE ONLY
We control and operate the Site from our offices in the State of California. We make no representation that any of the materials or the services to which you have been given access are available or appropriate for use outside the United States and access to the Site from territories where its contents are illegal or restricted is prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with applicable laws, rules and regulations.
FEEDBACK AND SUBMISSIONS
The Smarty Sampler welcomes your feedback and suggestions about The Smarty Sampler's programs or services or with respect to how to improve the Site. By transmitting any suggestions, information, material, or other content (collectively, "feedback") to The Smarty Sampler, you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to The Smarty Sampler and enable The Smarty Sampler to use such feedback. In addition, any feedback received through the Site will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for The Smarty Sampler to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
The Smarty Sampler has adopted the following procedure regarding copyright infringement in accordance with the Digital Millennium Copyright Act ("DMCA"), the text of which is located at http://www.copyright.gov/legislation/dmca.pdf.
THE FOLLOWING INFORMATION IS SOLELY FOR NOTIFYING US THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (e.g., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF E-MAIL ABUSE) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
If you believe that your copyrighted work has been used or displayed on our website in a way that constitutes copyright infringement, please report the alleged infringements by completing the following steps and by notifying The Smarty Sampler’s Designated Agent, as listed below. Pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement should be sent ONLY to our Designated Agent. The Smarty Sampler will respond expeditiously to any claims of copyright infringement that are properly reported.
Written notification must be submitted to the following Designated Agent:
Service Provider(s): The Smarty Sampler
Name of Designated Agent to Receive Notification of Claimed Infringement: Copywrite Manager
Full Address of Designated Agent to Which Notification Should Be Sent: P.O. Box 120726 San Diego, CA 92112-0726
Email Address of Designated Agent: [email protected]
Under Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:
(1) An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
(2) Identification of the copyrighted work (or works) that you claim has been infringed;
(3) A description and identification of the material that you claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page of the website where it is lawfully posted; the name, edition and pages of a book from which an excerpt was copied, etc.);
(4) A clear description of where the infringing material is located on our Website, including as applicable its URL, so that we can locate the material;
(5) Your contact information, including your name, address, telephone number, and e-mail address;
(6) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(7) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
MOBILE PROGRAM TERMS OF SERVICE
The The Smarty Sampler mobile message service (the "Service") is operated by The Smarty Sampler ("The Smarty Sampler ", "we", or "us"). Your use of the Service constitutes your agreement to these terms and conditions ("Mobile Terms"). We may modify or cancel the Service or any of its features without notice. We may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.
We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply.
Text messages may be sent using an automatic telephone dialing system or other technology. Your consent to receive autodialed marketing text messages is not required as a condition of purchasing any goods or services. If you have opted in, the Service provides promotions, specials, and other marketing offers from The Smarty Sampler via text messages through your wireless provider to the mobile number you provided. Message frequency varies. Text the single keyword command STOP to cancel at any time. You'll receive a one-time opt-out confirmation text message. For Service support or assistance, text HELP or email [email protected]
We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. You agree to maintain accurate, complete, and up-to-date information with us related to your receipt of messages, including, without limitation, notifying us immediately if you change your mobile number.
You agree to indemnify, defend, and hold us harmless from any third-party claims, liability, damages or costs arising from your use of the Service or from you providing us with a phone number that is not your own.
You agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.