Please read the following terms and conditions (the "Terms and Conditions"), which apply to activities you perform on the Smerby.com website (the “Website”), transactions for purchasing Smerby’s services, and activities or communications that occur between you and us (collectively known as the "Service"). When you register for the Service or use the Website, you agree to abide by these Terms and Conditions. You further agree to abide by the terms and conditions, terms of use, and/or policies and procedures (collectively, the “Vendor Terms”), as applicable, of Smerby’s vendors, which Vendor Terms are displayed on the Website and which may be modified from time to time in the sole discretion of Smerby’s vendors. Please read the following Terms and Conditions and the Vendor Terms carefully, as they form the agreement between you and Smerby with respect to the Service. As used in these Terms and Conditions, “Smerby,” "we," "us," and “our” all refer to Smerby.com, LLC or any successor or assign of Smerby.com, LLC; and “you,” “your,” “Member,” “Premium Member,” “Associate,” “Distributor,” “Rep” and “user” (as may be applicable) all refer to you, the user of the Service.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT REGISTER FOR OR USE THE SERVICE, OR USE THE WEBSITE. BY REGISTERING WITH US, USING THE SERVICE AND/OR USING THE WEBSITE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS.
These Terms and Conditions were implemented on July 31, 2009 and were last updated on August 26, 2009.
TERMS AND CONDITIONS:
Right to Use
Your right to use the Service is subject to these Terms and Conditions, which may be modified by us in our sole discretion from time to time. Subject to the policies and procedures governing the Smerby-Distributor relationship (the “Policies and Procedures”), we may alter, suspend, or discontinue any aspect of the Service at any time, including the availability of any Service feature, database, or content. We may also impose limits on certain features and aspects of the Service or restrict your membership or access to part or all of the Service without notice or liability.
Similarly, our vendors may modify their own respective Vendor Terms according to their own policies.
Age Requirement
You represent, warrant, and covenant that you are at least 18 years old or the age or majority in the jurisdiction in which you reside. If you are not at least 18 years old or the age of majority in the jurisdiction in which you reside, do not register for or use the Service.
Legal Requirement
You may not use the Service if you are barred from doing so by the laws of the United States or those of other countries, including the country in which you reside
Code of Conduct
You agree to use the Service in accordance with the following Code of Conduct:
You will not use the Service to engage in any form of harassing, lewd, or otherwise offensive (in our sole discretion) behavior.
You will not use the Service to infringe the privacy rights, property rights, or civil rights of any third party.
You will not use the Service in any way that (i) violates, plagiarizes, or infringes upon the rights of any third party, including, but not limited to, any copyright or trademark law, privacy or other personal or proprietary right(s), or (ii) is fraudulent or is otherwise unlawful.
Any transferring, trading, or sharing of accounts shall be subject to the Policies and Procedures.
You will not use or attempt to use the Service by any means or device with the intent to avoid payment for such
use.You will not introduce to or through the Service any software or computer program, without limitation, that is intended to or that does in fact harm, destroy, interrupt, or otherwise limit the functionality of any computer software, hardware, or other equipment.
You will not use the Service for any unlawful purpose.
You acknowledge and agree that we may refuse to grant you a user name that impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise inappropriate or offensive, as determined by us in our sole discretion.
License
By sending any information to or through the Service, you hereby grant us an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, publicly perform, publicly display and distribute such information and to prepare derivative works of, or incorporate into other works and to grant and authorize sub-licenses of the foregoing.
Notwithstanding the foregoing, we will only disclose such information in accordance with our Privacy Policy.
Notice of Claimed Infringement
We respect the intellectual property of others, and we ask our Members to do the same with respect to the Service. Accordingly, we voluntarily observe and comply with Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Designated Agent with the following information:
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
c) a description of where the material that you claim is infringing is located on the Website;
d) your address, telephone number, and email address;
e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
f) a statement by you, made under penalty of perjury, that the information in your notice to us is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You may send your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire
781 Douglas Avenue
Altamonte Springs, FL 32714
Phone: (407) 975-9150
Fax: (407) 774-6151
Larry@LawrenceWalters.com
Please do not send other inquires or information to our Designated Agent. Rather, please send all other inquiries or information to legal@smerby.com.
Smerby’s Exercise of its Rights
Any failure on our part to exercise any of our rights arising from these Terms and Conditions and/or under the laws of Florida or federal law, whether intentional or unintentional, shall not be construed in any way as waiver of such right or consent to the conduct or absence of conduct on the part of the Member or arising from the use of a Member’s user name and password. We may only waive our rights in a writing explicitly expressing it desire to waive such rights, signed by a principal of Smerby.
We reserve the right to comply with any and all legal inquiries from authorities having proper jurisdiction over such matters, with respect to your use of the Service, your membership, and any and all information related thereto.
Security
Your account is private and should not be used by anyone else. You are responsible for all usage or activity on the Service by users using your password, including, but not limited to, use of your password by any third party. If you have reason to suspect a third party may have knowledge of your password, it is your responsibility to change your password and inform us. Otherwise, you will be solely responsible for any conduct arising from such third party’s use of your account.
External Links
The Service may from time to time contain links to third party websites and resources (collectively, the "External Links"). You hereby acknowledge and agree that we are not responsible for, and have no liability as a result of, the availability or the content of the External Links or any damages or claims arising from the use of the External Links. Nor does the presence of the External Links necessarily represent our endorsement of the External Links.
Indemnity
You hereby agree to indemnify Smerby, its officers, directors, employees, and agents, from any losses or damages, including without limitation reasonable legal fees, that we may suffer from your activities on or use of the Service, including without limitation any breach by you of these Terms and Conditions or any charges or complaints made by others against you, including any such activities or use by any and all third parties using your account. You agree to cooperate as fully and reasonably required in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you; provided, however, that you shall remain liable for any such claim.
Modifications
We reserve the right to modify these Terms and Conditions from time to time. Notification of modifications will be posted on the Website or sent to you via e-mail, as we may determine in our sole discretion. We assume no responsibility to e-mail you or otherwise contact you regarding any such changes, regardless of any past or future such contact from us. We will, however, post these Terms and Conditions with any modifications on the Website and update the date contained there on so that you will be on notice of the changes. Please check the Website from to time for any such modifications. If you do not agree to any such modifications, you must immediately terminate your use of the Service. Your continued use of the Service following the posting of notice of any modifications constitutes your continued acceptance of the Terms and Conditions.
Disclosure and Other Communication
We may send e-mail to you for the purpose of informing you of modifications to the Service or of any our related products and services. We reserve the right to disclose information about your usage of the Service in forms that do not reveal your personal identity.
Complaints
To resolve or report a complaint regarding the Service, please send an e-mail to us at legal@smerby.com. We will attempt to resolve any problems arising from such complaints in a timely and efficient manner.
Access
You are responsible for providing or procuring the equipment and Internet connection necessary to access the Website and use the Service. You may become a Member by completing an online registration form, which is subject to our final approval, and by paying the membership fee in effect at that time. Upon submission of the registration form, we or our authorized agent will process the form.
Duties at and after Registration
In connection with completing the registration form, you agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while you are a Member. You must promptly inform us of any and all changes, including, but not limited to, changes in your address and changes with the credit card used in connection with our billing, including but not limited to changes in the name on the card, the expiration date, the address connected with the card, and in the event that you have cancelled such credit card registered with us. If you provide any information that is untrue, inaccurate, not current or incomplete, or we or our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your account and refuse any and all current or future use of the Service by you. Untruthful, inaccurate or non current information may result in civil liability or criminal liability, as applicable. You are responsible for dishonored checks or refused charges for any reason and any related fees that are incurred with respect to your account.
Member Account, Password and Security
As part of the registration process, you must choose a unique user name and password. You agree not to choose a user name that may falsely represent you as somebody else or a name that may otherwise be in violation of the rights of a third party. We reserve the right to disallow the use of user names that we, in our sole discretion, deem inappropriate. We reserve the right to cancel the membership of any Member who at any time uses their selected user name in violation of these Terms and Conditions. Your membership, user name, and password are nontransferable and non-assignable. You represent and warrant that you will not disclose to any other person your unique user name and password and that you will not provide access to the Service to anyone. You are solely responsible for maintaining the confidentiality of your user name and password and are fully responsible for all activities resulting from the use of your user name and password. We will not release your password for security reasons. You agree to (a) ensure that you exit from your account at the end of each session, and (b) immediately notify us of any unauthorized use of your user name and password or any other breach of security. You are liable and responsible for any unauthorized use of the Service until you notify us by e-mail regarding such unauthorized use. Unauthorized access to the Service is illegal and a breach of these Terms and Conditions.
Initial Term
The initial term of your membership shall be one (1) month from the date your application is approved by us.
Automatic Renewal
Your membership shall automatically renew and continue on a month-to-month basis until such time as you or we terminate your membership. Renewal shall be subject to whatever fee structure is then in effect, which may or may not differ from the fee schedule in effect when you signed up. It is your duty to cancel your membership if you do not agree to such fee structure. Your continued use of the Service will be deemed your acceptance of the new fee structure.
Payment of Membership Fees
You agree to pay all membership fees, where applicable, when due according to the following billing terms. Payment of fees shall initially be due thirty (30) days after you submit your application and it is approved, and shall continue in thirty (30) day cycles thereafter for the preceding period’s use of the Service.
When prompted, you must select a payment method. We reserve the right to contract with a third party to process all Member payments. Such third party may impose additional terms and conditions governing payment processing. Your card issuer agreement may contain additional terms with respect to your rights and liabilities as a card holder. You agree to pay any and all amounts outstanding and due to us immediately upon cancellation or termination of your account. We reserve the right to make changes to our fees and billing methods, including the addition of supplemental charges for any content or services provided by us, with or without prior notice to you, at any time. We use an automatic rebill cycle according to your selected payment option.
Billing Errors
If you believe that you have been erroneously billed, please notify us immediately. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed accepted and acceptable by you for all purposes, including without limitation resolution of inquiries made by your credit card issuer. You release us from all liabilities and claims of loss or damage resulting from any error or discrepancy that is not reported to us within thirty (30) days of its first publication.
Severability
If any provision of these Terms and Conditions, or any portion thereof, shall be held to be invalid, illegal, or unenforceable for any reason whatsoever then the validity, legality, and enforceability of the remaining provisions of these Terms and Conditions shall not in any way be affected or impaired thereby; and to the fullest extent legally possible, the provisions of these Terms and Conditions shall be construed so as to give effect to the intent of any provision held invalid, illegal, or unenforceable.
Jurisdiction/Disputes
This Terms and Conditions and all matters arising out of or otherwise relating to these Terms and Conditions shall be governed by the laws of the State of Florida, excluding its conflict of law provisions. You and Smerby hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida in and for Palm Beach County for resolution of all disputes. You agree that the exclusive venue for any and all conflicts arising out of these Terms and Conditions and/or your use of the Website or the Service will be in Palm Beach County, Florida.
Cancellation by Member
You may cancel your membership at any time by visiting http://www.smerby.com/member/my_account/index.php and following the cancellation steps on this webpage. You hereby agree to be personally liable for any and all fees or charges you incur through the date of termination of your membership for the use of the Service. In the event that you cancel your account no refund will be granted and no online time or other credits will be credited to you or can be converted to cash or other form of reimbursement. Upon our processing of your request to cancel your membership, you will no longer have access to the Service.
Termination by Smerby
Without limiting our other remedies and subject to the Policies and Procedures, as applicable, we may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access and use of the Service at any time, with or without advance notice, if: (a) we believe that you have breached any material term of these Terms and Conditions, (b) you fail to pay any amount due by the payment due date; (c) we are unable to verify or authenticate any information you provide to us; (d) we believe that your actions may cause legal liability for you, our Members, or us; or (e) we decide to cease operations or to otherwise discontinue any or all portions of the Service. Further, you agree that neither we nor any third party acting on our behalf shall be liable to you for any termination of your membership or access to or use of the Service. You agree that if your account is terminated by us, you will not attempt to re-register as a Member without our prior written consent.
After Cancellation or Termination
You agree that when you cancel your membership you will be automatically restricted from the Service, you will be unable to access your account, and your account information will be immediately and irretrievably deleted from the Website. These Terms and Conditions shall survive cancellation or termination of your membership, unless stated otherwise.
Furthermore, with regard to the domain registration portion of the Service and to those services offered by our vendor, Moniker, if you register for a domain name(s) and then elect to cancel your Smerby Premium Membership, such domain name(s) that you have registered shall belong exclusively to Smerby; provided, however, such domain name(s) may be transferred, upon your prior payment to Smerby of Ten Dollars ($10.00) per domain name, to the account of your choosing.
Limitation of Liability
Neither Smerby nor its officers, employees, agents, associates, or attorneys are responsible for any incidental, consequential, special, punitive, exemplary, direct or indirect damages of any kind whatsoever that may arise out of or relate to your use of the Service, including, but not limited to, lost revenues, profits, business or data, or damages resulting from any viruses, worms, "Trojan horses" or other destructive software, materials, or communications by you or other users of the Service, or any interruption or suspension of the Service, regardless of the cause. Any claim against Smerby shall be limited to the amount you paid, if any, for use of the Service during the previous two (2) months.
Disclaimer of Warranties
THE SERVICE PROVIDED BY OR THROUGH SMERBY IS PROVIDED ON A “AS IS” BASIS AND USE OF SUCH SERVICE IS AT THE MEMBER’S OWN RISK. SMERBY HEREBY DISCLAIMS ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
SMERBY DOES NOT WARRANT THAT THE SERVICE WILL MEET THE MEMBER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, OR, IN THE EVENT OF A DEFECT, THAT THE DEFECT WILL BE CORRECTED EITHER IN A TIMELY MANNER OR AT ALL. ADDITIONALLY, SMERBY DOES NOT WARRANT THAT THE SERVICE WILL BE ACCURATE OR NON-OBJECTIONABLE, WHETHER DUE TO AN ERROR ON THE PART OF SMERBY OR TO MISUSE ON THE PART OF ANY MEMBER OR USER OF THE SERVICE.
WITHOUT EXPANDING THE LIMITATION ON LIABILITY SET FORTH HEREIN, YOU AGREE THAT IN NO EVENT WILL SMERBY’S LIABILITY TO YOU UNDER THESE TERMS AND CONDITIONS OR OTHERWISE EXCEED THE PRORATED AMOUNT OF MEMBERSHIP FEES PAID BY YOU TO SMERBY FOLLOWING ANY ALLEGED BREACH BY SMERBY. YOU AGREE TO MITIGATE YOUR DAMAGES AND ASSUME THE DUTY TO IMMEDIATELY TERMINATE YOUR USE OF THE SERVICE AND YOUR MEMBERSHIP WHEN YOU DISCOVER OR BELIEVE THERE HAS BEEN A BREACH OF THESE TERMS AND CONDITIONS OR, AS APPLICABLE, THE POLICIES AND PROCEDURES ON THE PART OF SMERBY. YOU ALSO AGREE TO IMMEDIATELY INFORM SMERBY OF SUCH ALLEGED BREACH BY SMERBY.
FINALLY, SMERBY DOES NOT WARRANT THAT THE SERVICE WILL OPERATE IN THE COMBINATIONS THAT THE USER MAY DESIRE. NOR DOES SMERBY WARRANT THAT THE SERVICE WILL BE COMPATIBLE WITH ALL MEMBERS’ OPERATING SYSTEMS, INTERNET SERVICE PROVIDERS, BROWSERS OR OTHER APPLICATIONS ON THE MEMBER’S COMPUTER.
SERVICES TERMS: