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Terms of Service  

Welcome to Smesh!

Smesh, LLC. ("Smesh", "our", "us" or "we") provides Smesh – the social bookmarking service that enables users to tag, save, share and discover web content through our website located at www.smesh.net and any other domains owned and controlled by Smesh through which the Service is accessible (the "Site") (any and all of the foregoing the "Service") The Service also includes the Smesh bookmark button for your internet browser and any related documentation (the "SmeshThis").

By accessing or using the Service, you are indicating that you have read, understand and agree to be bound by the following terms and conditions ("Terms"), which form a legal agreement between you and Smesh. These Terms govern your access to and use of the Service and all Service Content (defined below).  If there is a conflict between these Terms and the terms and conditions posted for a specific area of the Service or certain content, the latter terms and conditions will take precedence for your use of or access to that specific area. If you accept or agree to these Terms on behalf of an organization, you represent and warrant that you have the authority to bind that organization to these Terms.

The Basics

Our goal is to provide a valuable and enjoyable service through which users can share and discover the "tastiest" web content and have fun doing so.  Please read all of these Terms, and the Smesh privacy Policy, which forms part of these Terms and describes our collection and use of information you provide to us.

  1. What's yours is yours. You grant us certain rights in your Member Content (e.g., to share your "public" content with the world!), but we don't claim any ownership rights in your Member Content.
  2. Think about what you post and where. Your Member Content (e.g., what you post to the Service) will be publicly viewable by others. unless you mark it "private" (for bookmarks) or choose not to publish it (for stacks). Please see our Privacy Policy which contains further details.

  1. You are responsible for your use of the Service and your Member Content. You should only contribute content you are comfortable sharing with others under these Terms.
  2. We don't disclose your personal information to third parties except in accordance with our Privacy Policy. See the Smesh Privacy Policy for information and notices concerning our collection and use of your personal information via the Service.
  3. Be good. The Service is only provided for lawful purposes and not for the promotion of illegal activity.

We may make Modifications or Changes

Smesh may, its sole discretion, choose to modify, discontinue or terminate the Service or to modify these Terms, at any time and without prior notice.  Currently, you may access and use the Service without charge. However, we may add premium services in the future which may be accessible for a fee. If we modify these Terms, we will post the modification on the Site or via the Service or provide you with notice of the modification.  We will also update the "Last Updated Date" at the top of these Terms.  By continuing to access or use the Service after we have posted a modification on the Site or via Service or have provided you with notice, you are agreeing to be bound by the modified Terms.  If the modified Terms are not acceptable to you, your only option is to stop using the Service.  As a courtesy and provided it's commercially reasonable to do so, if we permanently terminate your access to your Account (except in the event of your violation of these Terms) or discontinue the Service we will provide you with a way to transfer the collection of "bookmarks" part of your Member Content, subject to applicable law.

Eligibility and Access

The Service is intended solely for persons who are 13 or older. By accessing or using the Service you represent and warrant that you are 13 or older. You may use the Service only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.

If you register to become a "Member" and create an account ("Account") either directly via the Service or a third party social networking service (each an "SNS"), you will be asked to provide certain information and to establish a username and a password.  By registering via a SNS, you authorize us to access your SNS account information on your behalf.

You are responsible for safeguarding your password and take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. Smesh reserves the right to require you to change your username for any reason and we may do so at anytime.

Content: What's available? Who owns what? How can it be accessed and used?

Definitions. Certain types of content are made available through the Service:

  1. "Content" means links, text, graphics, images, audio, video, information or other materials.

  1. "Smesh Content" means all Content that Smesh selects and makes available through the Service, including any Content licensed from a third party, but excluding Member Content.

  1. "Member Content" means all Content that a Member posts, submits or transmits to be made available through the Service including links and the information associated with those links such as video, audio, pictures or text from the site at which the link points.

  1. "Service Content" means Member Content and Smesh Content.

  1. "Page" means a grouped collection of bookmarks.

Member Content. Your Member Content is yours; Smesh does not claim any ownership rights in your Member Content. By posting, submitting or transmitting any Member Content on or through the Service, you grant us and our third party service providers and partners a worldwide, non-exclusive, transferable, royalty-free license (with the right to sublicense) to use, copy, reproduce, adapt, modify, distribute, transfer, publicly display, publicly perform, transmit, broadcast, access, view and otherwise exploit such Member Content in any and all media or distribution channels (now known or hereafter created).  For example, this license allows us to make your public "bookmarks" and comments available anywhere and everywhere in the spirit of the Service i.e., for use by other Members, our partners and via other media platforms.  No compensation will be paid to you with respect to your Member Content as a result of your posting, submitting or transmitting Member Content through the Service.

You are responsible for your use of the Service and the Member Content that you make available, whether such content is publicly posted or privately provided by you.  We are not responsible or liable for any use of your Member Content in accordance with these Terms. You understand that your Member Content may be used by other users and our partners and if you don't have the right to submit your Member Content for such use, it may subject you to liability. You represent and warrant that you own or have all the necessary rights, licenses, consents and permissions to grant the foregoing rights in your Member Content.

You may remove your Member Content from the Service at any time by specifically marking it for deletion or terminating your Account.  If you choose to remove your Member Content or to terminate your Account, your Member Content will be removed from our systems in a commercially reasonable amount time (e.g., time enough to allow our services to update), provided, however, we may retain an archived copy as required by law or for legitimate business purposes. In addition, in certain instances, copies of your Member Content may continue to exist in published or recorded form when it has been retransmitted, redistributed, or otherwise licensed to others as contemplated in these Terms. So, for example, if you remove a comment or a collection of bookmarks associated with your Account, such content may continue to appear in other places if someone makes a copy before you remove it from the Service. (e.g., as indexed by a search engine or a web archive).

It's your responsibility to back-up your Member Content. You agree that Smesh is not responsible or liable for the deletion of, or the failure to store or to transmit any Service Content.

License to Other Members. Subject to your compliance these Terms, Smesh grants you a limited license to access, share, tag and save to your Account any Member Content (including another Member's public "bookmarks") for your personal and non-commercial use, subject to the applicable Member's access settings for such content.  This license relates to the use of the Service and does not imply or represent that Smesh has any rights in the Member Content and Smesh does not purport to grant any rights in the Member Content. You may not use, copy, reproduce, adapt, modify, prepare derivative works based upon, distribute, transfer, publicly display, publicly perform, transmit or otherwise exploit the Service or Service Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Smesh or its licensors, except for the licenses and rights expressly granted in these Terms.

Content on Smesh. You understand and agree that Smesh has no obligation to monitor your access to or use of the Service or Service Content or to review or edit any Member Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.  Smesh reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Service Content, that Smesh, it its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Service.

The Service contains links to other websites and online resources and you understand that by using the Service and accessing third party links, you may be exposed to content that is offensive, harmful, inaccurate or otherwise inappropriate.  You understand and agree that Smesh is not responsible or liable for: (i) the availability or accuracy of such websites or resources; (ii) the content, products, or services on or available from such websites or resources, or (iii) for any result of your accessing a third party site via a link made available by the Service.  Links to such websites or resources do not imply any endorsement by Smesh of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Our Ownership and Proprietary Rights. The Service and Service Content are protected by copyright, trademark, and other laws of the United States and foreign countries.  Except as expressly provided in these Terms, Smesh and its licensors exclusively own all right, title and interest in and to the Service and Smesh Content, including all associated intellectual property rights.  All trademarks, service marks, logos, trade names and any other proprietary designations of Smesh used herein are trademarks or registered trademarks of Smesh. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Copyright Policy: No Infringing Use

Smesh respects copyright law and expects its users to do the same.  Smesh has adopted and implemented a policy that provides for copyright holders to notify us if they believe content on the Service infringes their rights and for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.  Please see the Smesh Copyright Policy for further information.

What Not To Do

You agree not to do any of the following:

  1. Post, submit or transmit any Member Content that constitutes a direct, specific threat of violence against another;

  1. Use the Service for an unlawful purpose or for promotion of illegal activities;

  1. Impersonate others through the Service in a manner that does or is intended to mislead, confuse or deceive others;

  1. Access, tamper with, or use non-public areas of the Service, Smesh’s computer systems, or the technical delivery systems of Smesh’s providers;

  1. Attempt to probe, scan, or test the vulnerability of any Smesh system or network or breach any security or authentication measures;

  1. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Smesh or any of Smesh’s providers or any other third party (including another user) to protect the Service or Service Content;

  1. Attempt to access or search the Service or Service Content or download Service Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Smesh or other generally available third party web browsers;

  1. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

  1. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Service Content to send altered, deceptive or false source-identifying information;

  1. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, intentionally linking to malicious content, overloading, flooding, spamming, or mail-bombing the Service;

  1. Collect or store any personally identifiable information from the Service from other users of the Service without their express permission; or

  1. Encourage or enable any other individual to do any of the foregoing.

When it's Over

If you violate any of these Terms, your permission to use the Service may be suspended or permanently revoked. We reserve the right to suspend, disable or terminate your Account, in our sole discretion and without prior notice to you, with or without cause. You may cancel your Account at any time via the "Settings" section of your Account.

Got Feedback?

Any feedback, comments and suggestions for improvements to the Service that you submit to Smesh ("Feedback") will be the sole and exclusive property of Smesh and you hereby irrevocably assign to Smesh and agree to irrevocably assign to Smesh all of your rights in all such Feedback, including all related intellectual property rights.  Your submission of any Feedback to Smesh is entirely voluntary and we will be free to use such Feedback as we choose and without any obligation to you.

SmeshThis bookmark

If you choose to install the SmeshThis bookmark the following further terms and conditions also apply in addition to those above and below this "SmeshThis" section:

SmeshThis License. Subject to your compliance with the terms and conditions of these Terms, Smesh grants you a limited, non-exclusive and non-transferable license to install and use the executable form of the SmeshThis Bookmark, without modification, solely for your personal and non-commercial purposes.  Smesh reserves all rights in the SmeshThis Bookmark not expressly granted to you in these Terms.

License Restrictions. Except as expressly specified these Terms, you may not: (i)  copy, modify or distribute the SmeshThis Bookmark for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the SmeshThis Bookmark to any third party; or (iii) use the SmeshThis Bookmark in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms.  You agree to comply fully with all U.S. export laws and regulations to ensure that neither the SmeshThis Bookmark nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

Updates and Upgrades; No Obligation.  Smesh is not obligated to maintain or support the SmeshThis Bookmark, or to provide you with updates, upgrades or services related thereto.  You acknowledge that Smesh may from time to time in its sole discretion issue updates or upgrades to the SmeshThis Bookmark, and may automatically update or upgrade the version of the Smesh Bookmark that you are using.  You consent to such automatic updating or upgrading, and agree that the terms and conditions of these Terms will apply to all such updates or upgrades.

Term and Termination.  The license to the SmeshThis Bookmark granted under these Terms remains in effect unless earlier terminated by you or Smesh in accordance with these Terms.  You may terminate the license at any time by uninstalling all copies of the SmeshThis Bookmark in your possession or control.  Without limiting any other terms of these Terms, the license will automatically terminate without notice from Smesh if you breach any terms of these Terms.  Upon any termination of the bookmark license, you must cease all use of the SmeshThis Bookmark and promptly delete and destroy all copies, full or partial, of the SmeshThis Bookmark.

Third Party Code.  The SmeshThis Bookmark is distributed with certain independent code that is licensed under open source licenses ("Open Source Code") and the Open Source Code is licensed to you in accordance with the applicable open source licenses.  To the extent that any of the terms and conditions of these Terms conflict with any such open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code.

Proprietary Rights.  The copy of the SmeshThis Bookmark is licensed, not sold, to you.  You agree that Smesh  and its licensors own all right, title and interest in and to the SmeshThis Bookmark, including all intellectual property rights therein, and that Smesh retains ownership of all copies of the SmeshThis Bookmark. The SmeshThis Bookmark is protected by United States copyright law and international treaties.  You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the SmeshThis Bookmark as delivered to you.

Government Users. Any use, duplication, or disclosure of the SmeshThis Bookmark by the U.S. government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.  Manufacturer is Smesh, LLC.

The Service is Available "AS-IS"

Your access to and use of the Service and Service Content is at your own risk. You understand and agree that the Service and Service Content are provided to you on an "AS-IS" and "AS-AVAILABLE" basis. WITHOUT LIMITING THE FOREGOING, SMESH EXPLICITLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty (i) that the Service or Service Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis; or (ii) regarding the quality of any products, services or content or the accuracy, timeliness, truthfulness, completeness or reliability of any Service Content obtained through the Service. No advice or information, whether oral or written, obtained from Smesh or through the Service or Service Content will create any warranty not expressly made herein.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SMESH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR SERVICE CONTENT WILL BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICE; AND (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SMESH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL SMESH’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR SERVICE CONTENT EXCEED FIFTY DOLLARS ($50). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SMESH AND YOU.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.  The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms, including any claims arising from or related to the use of the Service or Service Content, will be the state and federal courts located in the Suffolk County of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between Smesh and you regarding the Service and Service Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Smesh and you regarding the Service and Service Content.

Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Smesh’s prior written consent.  Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect.  Smesh may assign or transfer these Terms, at its sole discretion, without restriction.  Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Smesh (i) via email (in each case to the address that you provide); or (ii) by posting on the Site or via the Service.  For notices made by e-mail or posting, the date of receipt will be deemed the date on which such notice is transmitted or posted, whichever is earlier.

General

The failure of Smesh to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.  The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Smesh.  Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.  If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Contacting Team Smesh

If you have any questions about these Terms, please contact Smesh at bizdev@smesh.net