Last updated: October 19th, 2015
1. Conditions on Using the Services
a) Basic Terms. We authorize you to use the Services solely for personal, non-commercial purposes. This Agreement applies to your use of the Services whether or not you register for a SmackHigh account, and whether you use the Services to browse, search, display, exhibit or share Content (as defined below) or otherwise. If you are accepting this Agreement on behalf of a minor above the age of 13, you represent and warrant that you are authorized to bind such minor to the Agreement, in which case the terms “you” and “your” in this Agreement will refer to such minor. We may, in our sole discretion, refuse to offer the Services to any person or entity. We may, without notice and in our sole discretion, terminate your right to use the Services, or any portion of thereof, and block or prevent your future access to and use of the Services or any portion thereof.
b) Your Account. A SmackHigh account is required in order to use certain features of the Services. You agree to provide only accurate and true information in connection with the creation of your account, and to update your information as necessary so it remains accurate and current. You may not transfer your account to any third party. You are responsible for keeping your account login information confidential and for any and all activities that occur under your account. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account or other breach of security on the Services.
d) Minors. THE SERVICES ARE NOT INTENDED FOR CHILDREN UNDER 13, and persons under the age of 13 are prohibited from registering with or using the Services. You represent and warrant that you are more than 18 years of age or, if you are above 13 and below 18 years of age, you are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to abide by and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.
e) Consent for Messages. You consent to receive periodic administrative messages from SmackHigh in connection with your use of the services[A1] .
a) Consent for Chatrooms. The SmackHigh Apps and SmackHigh Chats may allow you to add people to chatrooms operated on the SmackHigh Apps and the SmackHigh Chats (“Chatrooms”) so that you can message and chat with one another[A2] . You represent and warrant that each person you add to a Chatroom has consented to be added and to receive administrative messages from SmackHigh. In addition, SmackHigh may add you to Chatrooms operated by SmackChat. Instances in which you may be added to Chatrooms include, but are not limited to, when you make a submission to the SmackHigh Website. After that submission is curated, you may be added to a regionalized chatroom specific to your SmackHigh Website submission. You may opt out of participating in the Chatrooms at any time.
2. Ownership and Content
a) Generally. By using the Services, you will encounter “Content,” which includes all of the images, text, information, data, audio, video, graphics and other material included on or otherwise made available through the Services, via either the SmackHigh Apps or the SmackHigh Website. Content includes but is not limited to “User Content,” which includes all Content that is submitted, posted or otherwise provided on or through the Services by users. We do not claim ownership over any User Content, and each user is solely responsible for any User Content that they make available through the Services.
b) Ownership. All Content is owned by Smack, Inc., or by others who have licensed their Content to us, and is protected by U.S. and international copyright laws, trademark laws and/or other proprietary rights and laws. As between you and Smack, Inc. and its licensors, Smack, Inc. or its licensors own and retain, solely and exclusively, all rights, title and interest in and to the Services, all Content that we or our licensors create and that we make available to you through the Services, including but not limited to any and all copyrights, trademark rights, trade secret rights, patent rights, database rights and other intellectual property and proprietary rights therein. SMACK HIGH, SMACKHIGH, all associated logos and the other trademarks, service marks, logos and trade names displayed on or in connection with the Services are the registered and unregistered trademarks and service marks of Smack, Inc. or third parties in the United States and/or other countries. Your use of the Services does not grant you any ownership over any Content, and except for the limited license we grant you under this Agreement, your use of the Services does not grant you any license or permission under any copyright, trademark or other intellectual property rights of Smack, Inc. or any third party. We reserve all rights not expressly granted to you in this Agreement.
c) Service and Content License. We grant you a limited, non-exclusive, non-sublicensable and non-transferable license to use the Services as they are provided to you by us, only as set forth in this Agreement. Except as expressly permitted in this Agreement, you may not reproduce, distribute, adapt, modify, translate, create derivative works from, publish or otherwise use any portion of the Services or Content for any purpose without express prior written permission from us or the applicable rights holder. Any commercial exploitation of the Services or Content without express prior written permission from us or the applicable rights holder is strictly prohibited.
d) Software. The SmackHigh App, and all other software used in connection with the Services (“Software”) is proprietary to us or to third parties, and except as may be required to exercise the foregoing license grant, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or reduction of such software to human-readable form is prohibited. You agree that we may update the Software without notice, at any time and in our sole discretion, and that this Agreement will apply to any updated versions.
e) Mature Content. By using the Services, you acknowledge that the Content displayed in connection with the Services is generally uncensored, and that you may encounter Content that may be deemed objectionable, obscene, or in poor taste, and which content may or may not be identified as having explicit language. You agree to use the Services at your own risk. If you allow your child or any other minor to use any device on which the Content may be displayed, it is solely your responsibility to prevent them from accessing any Content that you think is or may be inappropriate.
3. User Content
b) User Feedback. We appreciate your feedback and suggestions about our Services, but you agree that any feedback or suggestions submitted to us about the Services are entirely voluntary and that we will be free to use any such feedback or suggestions as we see fit and without any obligation to you.
c) License to Smack, Inc. We do not claim any ownership rights in your User Content, and you remain the owner of any intellectual property rights that you have in your User Content. By submitting, posting, or providing any User Content on or through the Services, you grant Smack, Inc. a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable (through multiple tiers) right and license to use, reproduce, distribute, publish, adapt, modify, translate, create derivative works from, publicly perform and publicly display your User Content, inany media now known or later developed, for the purposes of developing, distributing, promoting and providing the Services. Such additional uses by SmackHigh App, or other companies, organizations, or individuals who partner with SmackHigh App, may be made with no compensation paid to you with respect to the content that you submit, post, transmit, or otherwise make available through the SmackHigh Appservice.
d) User Representations. By submitted User Content, you represent and warrant that (i) you own or otherwise control all of the rights to your User Content; (ii) that you have the written consent, release, and/or permission of each identifiable individual person in the User Content to use the name or likeness of each such person in connection with the Services; and (iii) the use of your User Content does not violate this Agreement and will not violate any rights of or cause injury to any person or entity.
e) Third-Party Access. You acknowledge that you are publishing and making your User Content available for viewing by third parties, including other users of the Services as well as the general public, that your User Content may be attributable to you[A3] , that third parties will gain access to your User Content through the Services, and that Smack, Inc. shall in no event be liable to you for any use or misuse of your User Content by any third party.
f) Right to Monitor or Remove. You agree that you must evaluate, and bear all risks associated with, your User Content. Smack, Inc. does not permit the infringement of intellectual property rights on the Service, and will remove User Content from the Services if properly notified that such User Content infringes on another’s intellectual property rights. We reserve the right to remove User Content from the Services, in whole or in part, without prior notice, for any reason or for no reason at all. Without limiting our right to terminate a user pursuant to Section 12 of this Agreement, we reserve the right to terminate the account of any user of the Services who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice. We also reserve the right to decide whether User Content is appropriate and complies with this Agreement for violations other than violations of intellectual property law. We may remove any User Content and/or terminate a user account for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.
g) No Endorsement. We do not endorse or make any representations or warranties as to the accuracy, completeness, truthfulness or reliability of any User Content or any advice, ideas or information communicated on or in connection with the Services by any users or other third parties. You agree that any reliance by you on any such advice, ideas or information is solely at your own risk. You agree that we have no obligation to review or screen any User Content before it is published on the Services, and that we will not be liable or responsible for the User Content of any other user.
h) Restrictions, Rules and Guidelines. You agree that your use of the services shall at all times comply with the SmackHigh Community Guidelines (“Guidelines”), located at [link] and which are incorporated by reference into this Agreement. Smack, Inc. reserves the right to immediately terminate your user account and/or block you from using the Services, without prior notice to you, should we determine that you have violated or failed to comply with this Agreement or the Guidelines. In addition to the restrictions covered by the Guidelines, you agree that you will not use the Services to:
i. Transmit any pornographic, obscene, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, illegal, or otherwise objectionable material or content;
ii. Transmit any material or content that attempts to falsely state or otherwise misrepresent your identity or affiliation with a person or entity;
iii. Transmit material or content that promotes, provides, or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group;
iv. Transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
v. Transmit or encourage the transmission of any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, or right of publicity; and
vi. Transmit any nude or sexually suggestive photos.
4. Other Websites and Services
The Services may contain links and features that enable you to access other third-party websites or services that are not owned or controlled by us. We do not control these websites or services, and we are not responsible for the contents of any linked site. A link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Smack, Inc. Please exercise caution before proceeding to any third-party website or entering into any transaction with third parties linked to from the Services. Our Services contain features that permit you to interact with the Twitter services provided by Twitter, Inc. (“Twitter”) By using these features, you agree to abide by Twitter’s Terms of Service, currently available at https://twitter.com/tos?lang=en. Twitter, Inc. does not sponsor or endorse the Services.
Our Services also contain features that permit you to interact with the services provided by GroupMe, Inc. (“GroupMe”)By using these features, you agree to abide by GroupMe’s Terms of Service, currently available at https://groupme.com/terms, including but not limited to GroupMe’s Code of Conduct, currently available at https://gropume.com/conduct. GroupMe does not sponsor or endorse the Services.
5. Warranty Disclaimers and Limitations of Liability
DISCLAIMER OF WARRANTIES. Smack, Inc. makes no representations or warranties of any kind regarding the Services or the Content. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SMACK, INC. EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICES, WEBSITE AND THE CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES, WEBSITE OR THE CONTENT; AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES, WEBSITE OR THE CONTENT. No advice or information obtained by you from Smack, Inc., or otherwise through the Services, will create any warranty not expressly stated herein.
LIMITATION OF LIABILITY. SMACK, INC. WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Indemnity. You agree to indemnify and hold Smack, Inc. and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by Smack, Inc., directly or indirectly, with respect to or arising out of: (i) your failure to comply with this Agreement; (ii) your breach of your obligations under this Agreement; (iii) your use of the rights granted hereunder, including without limitation any claims made by any third parties; (iv) your violation of any third party right, including without limitation any intellectual property, right of publicity, or privacy right; and/or (v) any claim that any of your User Content caused damage to a third party.
6. Copyright Claims
Smack, Inc. complies with the provisions of the Digital Millennium Copyright Act (DMCA) applicable to internet service providers (17 U.S.C. § 512, as amended), and responds to clear notices of alleged copyright infringement.
In the event you believe that any Content on the Services infringes your copyright, then please file a notice of infringement with our designated agent.
Attn: Copyright Agent
179 Lincoln St. Ste 405
Boston, MA 02111
Electronic notification is preferred. To be effective, any notice submitted to our Copyright Agent must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means that the notice must include substantially the following:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you are a user of the Services and User Content that you have posted to the Services has been removed or disabled, you may file a counter-notification pursuant to 17 U.S.C. § 512(g). To be effective, the counter-notification must be a written communication sent to the Copyright Agent listed above that includes the following:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that you have 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; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. § 512(c)(1)(C) or an agent of such person.
7. Applicable Law and Jurisdiction
The Services are operated by Smack, Inc. from the United States, and we do not represent or warrant that use of the Services or any component thereof is lawful in other jurisdictions. Access to the Service from jurisdictions where such access is illegal is prohibited. All matters arising from or relating to this Agreement and the use and operation of the Services shall be governed by the substantive laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws principles. Without derogation of the obligation to arbitrate set forth in Section 10 8 below, you agree to submit to the personal jurisdiction of the state and federal courts located in Boston, Massachusetts. If you gain access to the Services from locations outside the United States, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Services or Content in violation of U.S. export laws or regulations.
8. Dispute Resolution
All disputes arising out of or relating to this Agreement or the Services that are not resolved by mutual agreement shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect (for information on the AAA and its rules, see www.adr.org.) and the further procedures set forth herein, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. The arbitration shall be conducted in Boston, Massachusetts, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
9. Termination of Service
You may discontinue your use of the Services at any time. We may terminate your user account or right to access all or portions of the Services at any time, without notice, for any reason or for no reason or for conduct that we believe violates this Agreement and/or is harmful to other users, to Smack, Inc., to other service or information providers, or to any third parties. After any termination of this Agreement and/or after you otherwise stop using the Services, the following will survive and remain enforceable and in full force and effect: (i) all outstanding obligations between you and us; (ii) all remedies for breach of this Agreement; and (iii) the following sections of this Agreement: 2 (Content and Ownership), 3 (User Content), 6 (Other Websites and Services), 7 (Warranty Disclaimers and Limitations of Liability), 8 (Indemnity), 9 (Applicable Law and Jurisdiction), 10 (Arbitration and Dispute Resolution), 12 (Termination) and 18 (Miscellaneous Provisions).
No delay or omission by Smack, Inc. in exercising any of its rights under this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Smack, Inc. of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Smack, Inc. regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You shall not assign or transfer this Agreement or any right or obligation hereunder to any third party. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes.
You consent to receive communications from us electronically, and you agree that we may communicate with you by email or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you, or that you provide to us, electronically satisfy any legal requirement that such communications be in writing. We are not responsible for any automatic filtering that may be applied to any email notices that we send to the email address you have provided.
Effective: May 26th, 2015