Terms of Service
Effective July 1st, 2009
Welcome to the www.smesh.net or www.deepwidget.com websites (the "Smesh Site") and any other web sites or services owned or operated by Smesh LLC ("Smesh"). This Terms of Service ( "Agreement") is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age ("you"; "User") and Smesh regarding your use of the Smesh Site and the Widgets Services provided Smesh Site (the "Widgets"). All references to "we", "us," "our" and "Smesh" in this Agreement are intended to refer to Smesh LLC. and its affiliate entities.
Smesh reserves the right to modify or amend this Agreement without notice at any time, and such modification will be effective upon posting by Smesh on the Site. You agree to be bound by any changes to this Agreement when you use the Site after any such modification is posted. It is therefore important that you read this page regularly to ensure you are updated as to any changes. You can review the most current version of the Terms of Services at any time at http://deepwidget.com/tos.
If you become aware of misuse of this Site by any person, please contact the Site Administrator at firstname.lastname@example.org with your concerns.
1. Eligibility; Account Information.
The Smesh Site is not available to persons under the age of 18 or to any users suspended or removed from the Smesh Site by Smesh.
You must be 18 years of age or older and have the legal authority to enter into this Agreement. You affirm that the information you supplied is correct and complete.
You understand that all information provided by you will be relied upon by Smesh for the provision of Widgets Services thus shall be true and accurate. You agree that Smesh may disable or terminate the Services in the event that you provide false or incorrect information. If you register your account for paid fee services, you shall promptly notify Smesh whenever your personal information changes or billing information changes (including for example, your name, email address, address and telephone number, credit card number and the expiration date of the card).
User Name. You agree and acknowledge that Smesh has proprietary rights over the user names in our site. Smesh reserves the right, in our sole discretion, to change, remove or replace any user name for any reason. We may refuse to grant you, and you may not use, a Smesh user name that is already being registered by any third party; that may be construed as impersonating another person; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.
Password. You are solely responsible for maintaining the confidentiality of your account and password that you provided at the time of registration at Smesh Site and for restricting access to your computer, You will be responsible for all activities that occur under your password and you should keep your password confidential. You agree and acknowledge that all content posted and activities that occur under your account or password will be deemed as been posted or conducted by you and you are solely responsible for any loss incurred to Smesh or any third party by your contents and activities. In case you reasonably believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your password, or any credit, debit or charge card number), you shall promptly notify Smesh.
2. Prohibited Content and/or Activity
You must use the Site and Widgets in a manner consistent with any and all applicable laws and regulations. The following is a partial list of the kind of Content and activity that is illegal or prohibited on the Smesh Site and Widgets. Smesh reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending Content from the Site, terminating the membership of such violators without limiting its right to remedies under this Agreement and where permitted by laws. Prohibited content ("Prohibited Contents") includes Content that:
is obscene, patently offensive, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
harasses or advocates harassment of another person;
contains nudity, violence, or offensive subject matter;
involves the transmission of "junk mail" or "chain letters" or unsolicited mass mailing;
promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
exploits people in a sexual or violent manner;
solicits personal information from anyone under 18;
violates the copyright, trademark or other intellectual property rights of any other person;
furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing, creating or transmit computer worms viruses or any code of a destructive nature through the Smesh Sites or any Widgets posted thereon;
solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; or
The following is a partial list of the kind of activity that is illegal or prohibited on the Site. Smesh reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
fail to deliver payment for any purchases made on the Smesh Site;
make unsolicited offers, advertisements or proposals; or send chain letters, unsolicited email, SMS, "spam" or other junk messages to other Members;
any automated use of the system;
attempting to impersonate another User or person ;
using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
misrepresent the source, identity, or content of information transmitted via the Smesh Site, for example, claiming a created work as your own that is not yours;
selling or otherwise transferring your profile;
interfere with any security-related features of the Smesh Site or otherwise attempt to gain unauthorized access to the Smesh Site, or any part of them, other accounts, computer systems or networks connected to the Smesh Site, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Smesh Site or any activities conducted on the Smesh Site; or
use the Smesh Site in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party's use and enjoyment of the Smesh Site or the intellectual property rights of Smesh.
3. Free User Account
Smesh provides a limited number of Widget Services to users who registered with a free user account without a fee. You agree that Smesh may include any information in the Widget you use to identify its ownership of the Widget. You further agree and acknowledge that Smesh shall have the right to, at sole discretion display advertisements in Widgets and on the Smesh Site when you are using our Free User Account Services with no compensation to you. Smesh is neither responsible nor liable for any consequences caused by the Advertising or any contents of the Advertising.
4. Paid User Account
Smesh provides certain additional services with a monthly subscription fee ("Subscription Service") to users who registered with a paid account.
Subscription Service Plan Details. The current monthly effective subscription plans and restrictions for Smesh Paid User Account are set out at http://www.deepwidget.com.
Payment Method. You agree to provide Smesh with a valid major credit card or online payment method (such as Paypal) as the designated form of payment at the time of registration, and will maintain the validity of the payment information during the subscription period. You agree to pay all charges for the subscription of the Services, including any charges for late payment or collection cost if any.
You acknowledge and agree that you are responsible for maintaining the security of, and restricting access to, your account and password, and you agree to accept responsibility for all purchases and other activities that occur under your account and you must pay all charges due from that use.
Advance Payment. You agree to pay your subscription fee in advance of receiving any such subscription Service. Smesh reserves the right to discontinue or modify any subscription fee payment option at any time without notice. If you are signing up under any promotional subscription fee, you are bound by the additional restrictions of the promotion.
Taxes. User will be responsible for any applicable sales or use tax, duties, or other governmental taxes or fees payable in connection with your purchase. If you do not pay such sales or other tax or fee on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such sale, and Smesh reserves the right to collect such taxes or other fees from you at any time.
Automatic Renewal of Subscription Services. You understand and acknowledge that you may change your subscription in accordance with Section 4.9 of this Agreement or cancel the Services in accordance with Section 4.10. If you do not choose either of the actions as instructed in each section, the Subscription Service plan you subscribed to will automatically renew at the completion of the subscription period at the then prevailing subscription fee for the plan.
Authorization. You agree to authorize Smesh to automatically charge the subscription fee of the Subscription Services you selected (including renewals) on your designated credit card or payment method. Your access to the Smesh Subscription Service will not be established until Smesh has verified that the credit card or other payment information you provide Smesh for payment is accurate and that your credit card account or other payment method account is in good standing.
Billing Information. Your subscription details and billing information will be available online through your account on Smesh Site. You may access your account to view the information from time to time. If there is any dispute item in the statement, you shall notify Smesh of such disputed items within thirty (30) days of receipt, or such greater amount of time as permitted by law. Failure to timely notify us of a dispute shall constitute your acceptance of the corresponding bill. Disputes can be filed either by sending e-mail to email@example.com. Please retain your proof of filing a dispute claim.
Subscription Service Plan Usage Limitation. For different levels of Subscription Service plans, there is a limitation of number of network bandwidth that you may use during the subscription period. In cases where you exceed your usage limit during the subscription period, the Advertising will be automatically placed on the Widget you subscribe and the Advertising will be displayed on whatever website that you use the Widget.
Cancellation: You may cancel your Subscription Services Plan at any time by accessing your account and select the "cancel" option or by sending email to Smesh at firstname.lastname@example.org. Please note that if you cancel your subscription prior to the completion of the subscription period, Smesh will not prorate, nor refund you the Subscription Fees of the Subscription Service plan.
5. Advertising Contents Provided by User
As User of the account, you are solely responsible for all of the following materials placed on our Services: (a) ad targeting options and keywords (collectively "Targets") and all ad content, ad information, and ad URLs ("Creative"), whether generated by or for you; and (b) websites, services and landing pages which creates links or directs viewers to advertised services and products (collectively "User's Services"). You warrant and represent that all of the Targets and Creative are clear of Prohibited Contents and does not infringes the intellectual property rights of any third party. You shall protect your account information and passwords, and takes full responsibility for your own, and third party, use of your accounts. By publishing your contents via the Widget Services provided by Smesh, you understands and agrees that ads may be placed on any content or property provided by Smesh ("Smesh Property"). Customer authorizes and consents to all such placements. Customer agrees that all placements of User's ads and contents of the ads shall conclusively be deemed to have been approved by User.
6. Limitations on Use
By registering on Smesh Site, you hereby agree to only use any Widget on sites that you own. You shall not place Widget to any website owned by third party. If Smesh determines that a Widget you subscribe to is being used on any web site not owned by you, Smesh reserves the right to disable both the individual Widget subscription and your account even if you did not cause or authorize the usage.
7. Technical Processing
You understand that any technical processing and transmission through the Widgets, including your content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
8. Ownership; Proprietary Rights
You understand and acknowledge that the Smesh Site is owned and operated by Smesh. The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, and all other elements of the Smesh Site provided by Smesh, including without limitation any artwork, visual art and any combination thereof (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All trademarks, service marks, and trade names are proprietary to Smesh or its affiliates and/or third-party licensors. Except as expressly authorized by Smesh, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
You agree to defend, indemnify and hold harmless Smesh, its affiliates and subsidiary and its suppliers, licensors, and partners together with their respective employees, agents, directors, officers and shareholders, from and against all the liabilities, claims, damages and expenses (including reasonable attorney's fees and costs) arising out of your use or misuse of this Smesh Site; your breach or alleged breach of this Agreement; your breach or alleged breach of the copyright, trademark, proprietary or other rights of third parties; or any breach of the representations, warranties, and covenants made by you herein.
10. Copy Right Infringement
Smesh thrives to protect intellectual property rights. If you believe that any material contained in this Site or provided by our User via our Widget Service infringes your copyright, you should notify Smesh of your copyright infringement claim in accordance with the following procedure. Smesh will process notices of alleged infringement which it receives and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) and other applicable intellectual property laws. The DMCA requires that notifications of claimed copyright infringement should be sent to this Site's Designated Agent at email@example.com
Smesh will promptly terminate without notice any user's access to the Smesh Site, if that user is determined to be a "repeat infringer." A repeat infringer is a user who has been notified by Smesh of infringing activity violations more than twice and/or who has had content removed from the Smesh Site more than twice.
11. Third-Party Sites, Products and Services; Links
The Smesh Site may include links to other web sites or services solely as a convenience to users ("linked sites"). Smesh does not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, Smesh makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. Access and use of linked sites, including the information, material, products, and services on linked sites or available through linked sites, is solely at your own risk.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Smesh site are solely between you and such advertiser. You agree that Smesh will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Smesh Site.
For Violations; Termination of Free User Account. You agree and acknowledge that Smesh, in its sole discretion, may suspend or terminate any account (or any part thereof) you may have with Smesh or your use of the Smesh Site and remove and discard all or any part of your account, at any time without cause. Smesh may also, at its sole discretion and at any time discontinue providing access to the Smesh Site, or any part thereof, with or without notice. You agree that any termination of your access to the Smesh Site or any account you may have or portion thereof may be effected without prior notice, and you agree that Smesh shall not be liable to you or any third party for any such termination, or for any price change, suspension or modification of service. If you account is terminated due to the infringement of copyrights of Smesh or any third party, or due to any suspected fraudulent, abusive or illegal activity, Smesh Site may seek protection under appropriate law enforcement authorities without limiting its right to any remedies.
For Violations; Termination of Paid User Account. You agree and acknowledge that Smesh, in its sole discretion, may suspend or terminate any account (or any part thereof) you may have with Smesh or your use of the Smesh Site and remove and discard all or any part of your account, at any time if Smesh reasonably believes you breached this Terms of Agreement or your use of the Smesh Site and Services infringed the intellectual property rights of any third party. If you account is terminated due to the infringement of copyrights of Smesh or any third party, or due to any suspected fraudulent, abusive or illegal activity, Smesh Site may seek protection under appropriate law enforcement authorities without limiting its right to any remedies.
For Distribution of Widgets Via Ad Servers. By registering on Smesh Site, you hereby agree not to distribute Widgets through any ad serving technology or platforms. Smesh reserves the right to immediately turn ads on in all Widgets in the account in violation or immediately disable the account or disable the Widget serving on the violating account. If you intend on serving Widgets through ad serving technology or platforms, please contact Smesh.
By Users. You may cancel your account at any time by accessing your account and clicking on the "cancel" link. All of your User Provided Information may be deleted from your account upon cancellation. This information cannot be recovered once your account is cancelled. For clarity, an email or phone request to cancel your account is not considered cancellation.
Effect of Termination. Termination as provided hereunder will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all content in your account.
13. Disclaimers; No Warranties
The Smesh site and any third-party software, services, or applications, including but not limited to widgets, made available in conjunction with or through the Smesh site are provided "as is" and "as available" without support or warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, Smesh, its suppliers, licensors, and partners disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Smesh, its suppliers, licensors, and partners do not warrant that the functions contained in the Smesh site will be uninterrupted or error-free, that defects will be corrected, or that the Smesh site or the server that makes it available is free of viruses or other harmful components. Smesh, its suppliers, licensors, and partners do not warrant or make any representations regarding the use or the results of the use of the Smesh site in terms of correctness, accuracy, reliability, or otherwise. You (and not Smesh nor its suppliers, licensor or partners) assume the entire cost of any necessary servicing, repair, or correction. You understand and agree that you download or otherwise obtain material or data through the use of the Smesh site at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download of such material or data. Smesh takes no responsibility for third party advertisements which are posted on this Smesh site or on widgets developed by Smesh that are aggregated on the Smesh site, through the Smesh services, nor does it take any responsibility for the goods or services provided by its advertisers.
14. Product and Service Descriptions and Availability for Paid User
Smesh and its suppliers, licensors, and partners continually upgrade and revise its products and services to provide the customers with new products and services. Smesh may revise, discontinue or modify products or services at any time without prior notice to customers, and products or services may become unavailable without notice. Company shall have no liability of any kind if a product or service that has been ordered is unavailable. If necessary, Smesh reserves the right to substitute items of equal or greater value when an item or service is unavailable or Company may cancel the order.
We will make our best efforts to make the Service as accurate as possible and eliminate errors on Smesh, however we do not warrant that any product, service or description, photograph, pricing or other information is accurate, complete, reliable, current, or error-free. In the event of an error, whether on the Smesh Site, in an order confirmation, in processing an order, delivering a product or service or otherwise, we reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any amount charged. In addition, we may, in lieu of a refund as provided in this paragraph, opt to provide you with a merchandise or service credit (including without limitation issuing, at our option, Smesh credits, with a value at least equal to the amount charged to your credit card. Smesh reserves the right to determine and modify from time to time the exact nature of any such merchandise or service credit, including conversion into one or more different types of merchandise or service credits. Your sole remedy in the event of such error is to cancel your order and obtain a refund or credit as set forth above.
15. Limitation of Liability and Damages
Under no circumstances, including, but not limited to, negligence, shall Smesh or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages that result from your use or your inability to use the materials or services provided on the Smesh site, or any other interactions with Smesh, even if Smesh or a Smesh authorized representative has been advised of the possibility of such damages.
These limitations will also apply with respect to damages incurred by reason of any products or services sold or provided by third parties other than Smesh and received through or advertised on Smesh or received through any links provided on Smesh.
Unless otherwise provided, notice provided from Smesh to you will be served to the email address you provide to Smesh during the registration process. Any notice to Smesh shall be service to Smesh legal address specified in Section 23. Notice will be deemed given twenty-four hours after email is sent, unless the sending party is notified that the email address is invalid. In case notice is service via mail, notice will be deemed given three days after the date of mailing.
The failure of Smesh to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Smesh.
18. Governing Law and Jurisdiction
These Terms will be governed by and construed in accordance with the laws of the State of New York, reference to its principles of conflicts of laws. You agree that any action at law or in equity arising out of or relating to these Terms or Smesh will be filed only in the state or federal courts in and for Nassau or Suffolk County, New York, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you at any time, but may be assigned by Smesh without restriction.
21. Force Majeure
Without limiting the foregoing, under no circumstances shall Smesh or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
The services hereunder are offered by Smesh, Inc., located at Lake Grove, New York 11755, U.S.A., and email: firstname.lastname@example.org.