Smoopa Terms of Service
ACCEPTANCE OF TERMS
Smoopa, Inc. (“Smoopa”) provides the Smoopa Services (defined below) to you subject to the following Terms of Service (“TOS”), which may be updated by Smoopa from time to time without notice to you. You can review the most current version of the TOS at any time at: http://www.smoopa.com/terms. By accessing and using the Smoopa Services, you accept and agree to be bound by the terms and provision of the TOS. In addition, when using particular Smoopa owned or operated services, you and Smoopa shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
DESCRIPTION OF SMOOPA SERVICES
Smoopa provides users with access to local shopping information and related services, which may be accessed through products, services, and websites owned and/or operated by Smoopa, and any various medium or device now known or hereafter developed (collectively, the “Smoopa Services”). Unless explicitly stated otherwise, any new features that augment or enhance the current Smoopa Services, including the release of new Smoopa properties, shall be subject to the TOS.
You understand and agree that the Smoopa Services may include advertisements and that these advertisements may be targeted to the content or information on the Smoopa Services, queries made through the Smoopa Services, or other information, and that Smoopa may use any information provided by you to Smoopa in order to target ads and other communications to you. The types and extent of advertising on the Smoopa Services are subject to change. In consideration for Smoopa granting you access to and use of the Smoopa Services, you agree that Smoopa and its third party providers and partners may place such advertising on the Smoopa Services or in connection with the display of content or information from the Smoopa Services whether submitted by you or others. You also understand and agree that the Smoopa Services may include certain communications from Smoopa, such as service announcements, administrative messages, and price alerts.
You understand and agree that the Smoopa Services is provided “AS-IS” and that Smoopa assumes no responsibility for the accuracy, timeliness, deletion or mis-delivery of, or failure to store or maintain any user information, personalization settings, or other information or communications. You are responsible for obtaining access to the Smoopa Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Smoopa Services.
You understand that the technical processing and transmission of the Smoopa Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Smoopa does not warrant that the Smoopa Services, nor any content, whether generated by you, by Smoopa, or otherwise, will be available at all times, will be maintained for any particular period of time, or will be error-free.
SMOOPA REWARDS
You can participate in the Smoopa Rewards service if you are 13 years or older, reside in the United States and satisfy the requirements described in the TOS. If you are younger than 18 years of age, then you must ensure your parents consent to your using the service and redeeming rewards. Smoopa Rewards is a service for you to accumulate rewards for making qualifying purchases through your use of Smoopa. These rewards may be redeemed later only when requested from within the United States via the payment method that you select.
After receiving a special offer, you may submit a claim by following the instructions of the offer and providing proof of purchase and other information. Submitted materials become property of Smoopa. We may share your information with stores and our business partners in order to help us address customer support and other issues related to your participation in this service. Limit one reward per offer. Duplicate or incomplete claims will not be honored. The claim must be submitted within thirty (30) days of your purchase. Claims submitted more than thirty (30) days after the purchase date may not be processed.
You may earn up to Two Thousand Five Hundred U.S. Dollars ($2,500.00) of rewards in a calendar year, calculated based on when the claims are approved. For in-store purchases, you must purchase the product for the price, on the date and in the store indicated. For online purchases, you must purchase the item using a listing in the Smoopa app or from http://www.smoopa.com/history. You will not earn rewards where (a) you provide false or misleading information; (b) the store, price, or date does not appear on the receipt; (c) the order is later cancelled or the goods or services are later returned; (d) the store cannot verify your purchase; (e) the goods or services are acquired for resale or other business purposes; (f) you exceed the annual monetary cap on rewards; (g) you make a purchase from yourself or from entities that you control or otherwise in collusion with other people; (h) you close your browser or open the store's web site in a different web browser or tab; (i) you click away from the store after clicking on an eligible listing; (j) your browser is not configured to accept cookies; (k) the purchase is not completed in the same web browsing session in which you click on the eligible listing.
To participate in the service you must set up a Smoopa account by providing all of the required registration information. You must keep this account information up to date, accurate and secure. You may not barter, trade or otherwise exchange your account or maintain more than one account.
You must ensure that we properly post rewards to your account. If you believe that you have earned rewards that are not posted to your account, we may not consider posting them to your account unless you contact us within three months after the date of the associated purchase. We may require additional documentation to support your claim.
Smoopa rewards have no monetary value until the associated purchases are approved and you make a proper redemption request. You may request redemptions from your account, subject to then-current minimum redemption requirements. We may offer additional redemption options at any time. You may be taxed on your rewards, depending on the amount of rewards you accrue and the tax laws of federal, state, and local jurisdictions. You are solely responsible for any tax liability from your participation in the service.
We may disqualify transactions, reverse previously paid rewards, refuse redemptions and/or close your account at any time if you participate in any fraud or abuse relating to the service (including, without limitation, conducting "sham" transactions or otherwise colluding with merchants), make any misrepresentation in connection with your participation in the service, maintain multiple accounts or do not otherwise comply with this TOS. We also may close your account if it has been inactive for 12 months. Accrued but unredeemed Smoopa rewards in accounts that are closed will be returned to Smoopa.
The determination of whether or not a purchase is eligible for a reward is at the sole discretion of Smoopa. All rewards are subject to review. We may apply necessary adjustments to accounts at any time at our sole discretion. If you do not agree to adjustments made to your account, your only recourse will be to terminate your Smoopa account and withdraw from the Smoopa Rewards service.
YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Smoopa Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Smoopa Services under the laws of the United States or other applicable jurisdiction.
In order to access certain features of the Smoopa Services, you must create a user account with us. You may register only one user account. When you create an account, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Smoopa’s registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Smoopa suspects that such information is untrue, inaccurate, not current or incomplete, Smoopa has the right to suspend or terminate your account and refuse any and all current or future use of the Smoopa Services (or any portion thereof). Notwithstanding the foregoing, Smoopa undertakes no obligation to ensure, and makes no representation to you, that information (including but not limited to Registration Data) provided by other Smoopa users is true, accurate, current or complete. During the registration process, you may be asked to choose a username. Smoopa may refuse or revoke registration of a username for any reason in its sole and absolute discretion. In particular, however, you may not use a username for the purpose of impersonating another person or entity, nor use a username which is illegal, offensive, infringing upon the rights of others, or which is in breach of the TOS in any other way. Smoopa reserves the right to remove or reclaim inactive usernames, and to assign such usernames to other accounts or users.
SMOOPA PRIVACY POLICY
Registration Data and certain other information about you are subject to our applicable privacy policy. For more information, see the full Smoopa Privacy Policy at http://www.smoopa.com/privacy. You understand that through your use of the Smoopa Services you consent to the collection, use and disclosure (as set forth in the applicable privacy policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Smoopa and its affiliates.
PASSWORD AND SECURITY
You are responsible for maintaining the confidentiality of any passwords provided for use of the Smoopa Services, and are fully responsible for all activities that occur under your password or account, whether or not you have authorized such activities or actions. You agree to immediately notify Smoopa of any unauthorized use of your password or account or any other breach of security. Smoopa cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements or from unauthorized use of your password or account.
MEMBER CONDUCT
You understand that the Smoopa Services are available for your personal, non-commercial use only and that all information, text, photographs, or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Smoopa, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Smoopa Services. Smoopa does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Smoopa Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Smoopa be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Smoopa Services.
You agree to not access or use the Smoopa Services to:
a. submit, upload, post, email, transmit or otherwise make available any information that is known or believed by you to be false, inaccurate, or misleading;
b. submit, upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
c. harm minors in any way;
d. impersonate any person or entity, including, but not limited to, a Smoopa official, merchant, guide, or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Smoopa Service;
f. submit, upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
g. submit, upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
h. submit, upload, post, email, 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;
i. submit, upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
j. interfere with or disrupt the Smoopa Services or servers or networks connected to the Smoopa Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Smoopa Services, including using any device, software or routine to bypass our robot exclusion headers;
k. intentionally or unintentionally violate any applicable local, state, national or international law;
l. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
m. “stalk” or otherwise harass another;
n. collect or store personal data about other users; and/or
o. systematically or programmatically harvest information from the Smoopa Services, whether through the use of bots, scrapers, query engines, data miners or other automated means.
You acknowledge that Smoopa may or may not pre-screen Content, but that Smoopa and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Smoopa Services. Without limiting the foregoing, Smoopa and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable.
YOU AGREE THAT YOU MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SMOOPA SERVICES, INCLUDING BUT NOT LIMITED TO ANY CONTENT, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF SUCH CONTENT. BECAUSE CONTENT ON THE SMOOPA SERVICES IS SUBMITTED BY INDIVIDUAL USERS AND MERCHANTS, NO GUARANTEES ARE MADE IN REGARD TO THE ACCURACY OF THE PRICE, STORE NAME, STORE LOCATION, ITEM DESCRIPTION, OR OTHER VARIABLES OR INFORMATION. YOU SHALL BRING NO ACTION AGAINST SMOOPA NOR ANY OTHER SMOOPA USER, REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, UNTIMELINESS, UNAUTHENTICATED INFORMATION, OR OTHER DEFECTS IN THE INFORMATION OR CONTENT ACCESSIBLE THROUGH THE SMOOPA SERVICES. IN THIS REGARD, YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY CONTENT CREATED BY SMOOPA OR SUBMITTED TO SMOOPA IS AT YOUR OWN RISK, AND THAT ALL SUCH CONTENT IS FURNISHED “AS-IS” AND WITH ALL FAULTS.
You acknowledge, consent and agree that Smoopa may access, preserve and disclose your account information, Registration Data, and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Smoopa, its users and the public.
SPECIAL ADMONITIONS FOR INTERNATIONAL USE AND EXPORT AND IMPORT COMPLIANCE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of the Smoopa Services and transfer, posting and uploading of software, technology, and other technical data via the Smoopa Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, you: (a) represent that you are not a party identified on any government export exclusion list, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists, nor will you transfer software, technology, and other technical data via the Smoopa Services to parties identified on such lists; (b) agree not to use the Smoopa Services for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws; (c) agree not to transfer, upload, or post via the Smoopa Services any software, technology or other technical data in violation of U.S. or other applicable export or import laws.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SMOOPA SERVICES
Smoopa does not claim ownership of Content you submit or make available for inclusion on the Smoopa Services. However, by submitting Content to any part of the Smoopa Services, you grant, and you represent and warrant that you have the right to grant, to Smoopa a royalty free, irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), modify, prepare derivative works from, and distribute such Content for any purpose, to incorporate such Content into other works and to grant and authorize sublicenses of the foregoing.
CONTRIBUTIONS TO SMOOPA
By submitting questions, comments, suggestions, ideas, feedback, or other information (“Contributions”) to Smoopa, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Smoopa is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Smoopa shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Smoopa may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Smoopa without any obligation of Smoopa to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Smoopa under any circumstances.
INDEMNITY
You agree to indemnify and hold Smoopa and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the Smoopa Services, your use of the Smoopa Services, your connection to the Smoopa Services, your violation of the TOS, or your violation of any rights of another.
NO COMMERCIAL REUSE OF SMOOPA SERVICES
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Smoopa Services (including Content, advertisements, and your Smoopa account).
GENERAL PRACTICES REGARDING USE
You acknowledge that Smoopa may establish general practices and limits concerning use of the Smoopa Services at any time, at Smoopa’s discretion, including without limitation the maximum number of days that data, images, or other uploaded Content will be retained by the Smoopa Services, the maximum amount of information that can be submitted by an account, the maximum disk space that will be allotted on Smoopa’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Smoopa Services in a given period of time. You agree that Smoopa has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Smoopa Services. You acknowledge that Smoopa reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Smoopa reserves the right to modify these general practices and limits from time to time.
MODIFICATIONS TO SMOOPA SERVICES
Smoopa reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Smoopa Services (or any part thereof) with or without notice. You agree that Smoopa shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Smoopa Services (or any part thereof).
TERMINATION
You may terminate your Smoopa account and access to the Smoopa Services by submitting such termination request to Smoopa.
You agree that Smoopa may, without prior notice, immediately terminate, limit your access to, or suspend your Smoopa account and access to the Smoopa Services. Cause for such termination, limitation of access, or suspension shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to the Smoopa Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, and/or (f) engagement by you in fraudulent or illegal activities. Further, you agree that all terminations, limitations of access, and suspensions for cause shall be made in Smoopa’s sole discretion and that Smoopa shall not be liable to you or any third party for any termination of your account or access to the Smoopa Services.
Termination of your Smoopa account includes any or all of the following: (a) removal of access to all or part of the offerings within the Smoopa Services, (b) deletion of your password and all related information, files and Content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of the Smoopa Services.
DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Smoopa Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Smoopa shall 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 Smoopa Services.
You acknowledge that Smoopa does not sell, resell or license any products listed on the Smoopa Services, nor is Smoopa acting as an agent of sale. You acknowledge that Smoopa disclaims any responsibility for or liability related to such products (see Disclaimer of Warranties below). You agree to direct any question, complaint or claim about merchants (for example, about their products, customer service for their products or delivery) to the appropriate merchant or seller.
Smoopa does not warrant that product descriptions, prices, or other Content on the Smoopa Services, regardless of its source, is accurate, complete, reliable or current. Such Content is provided for informational purposes only and does not constitute an endorsement by Smoopa of any product, service, or merchant. You should not rely on such information in situations where its inaccuracy would cause you to suffer any loss. Smoopa assumes no liability for inaccuracy or incompleteness in its search results, prices, or other Content on the Smoopa Services.
LINKS
The Smoopa Services may provide, or third parties may provide, links to other sites or resources. You acknowledge and agree that Smoopa is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Smoopa shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
SMOOPA’S PROPRIETARY RIGHTS
You acknowledge and agree that the Smoopa Services and any necessary software used in connection with the Smoopa Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in advertisements or information presented to you through the Smoopa Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Smoopa or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Smoopa Services, any content you receive as part of the Smoopa Services (including Content) or the Software, in whole or in part.
Except for your own Content, you may not republish any content you receive through the Smoopa Service (including Content) on any Internet, Intranet, or Extranet site or incorporate the information in any other database or compilation without the prior written permission of Smoopa. Use of any data mining, robots or similar data gathering or extraction methods is strictly prohibited for any purpose.
Smoopa grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Smoopa Services. You agree not to access the Smoopa Services by any means other than through the interface that is provided by Smoopa for use in accessing the Smoopa Services.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SMOOPA SERVICES AND SOFTWARE ARE AT YOUR SOLE RISK. THE SMOOPA SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SMOOPA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. SMOOPA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SMOOPA SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THE SMOOPA SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SMOOPA SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SMOOPA SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SMOOPA SERVICES OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMOOPA OR THROUGH OR FROM THE SMOOPA SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SMOOPA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SMOOPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SMOOPA SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SMOOPA SERVICE; OR (e) ANY OTHER MATTER RELATING TO THE SMOOPA SERVICE.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.
NOTICE
Smoopa may provide you with notices, including those regarding changes to the TOS, including by but not limited to email, regular mail, postings on the Smoopa Services, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate this TOS by accessing the Smoopa Services in an unauthorized manner. Your agreement to this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the Smoopa Services in an authorized manner.
TRADEMARK INFORMATION
You agree that all of Smoopa’s trademarks, trade names, service marks and other Smoopa logos and brand features, and product and service names are trademarks and the property of Smoopa Inc. (the “Smoopa Marks”). Without Smoopa’s prior permission, you agree not to display or use in any manner the Smoopa Marks.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
Smoopa respects the intellectual property of others, and we ask our users to do the same. Smoopa may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. 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 Smoopa’s Copyright Agent 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 site;
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;
f. a statement by you, made under penalty of perjury, that the above information in your notice 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.
Smoopa’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail:
Copyright Agent
c/o Smoopa Inc.
2183 Santa Cruz Ave.
Menlo Park, CA 94025
By email:
smoopa@smoopa.com
GENERAL INFORMATION
Entire Agreement.
The TOS and the Smoopa Privacy Policy together constitute the entire agreement between you and Smoopa and governs your use of the Smoopa Services, superseding any prior version of this TOS between you and Smoopa with respect to the Smoopa Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Smoopa services, affiliate services, third-party content or third-party software.
Choice of Law and Forum.
You and Smoopa each agree that the TOS and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and Smoopa, shall be brought exclusively in the courts located in the county of San Mateo, California. You and Smoopa agree to submit to the personal jurisdiction of the courts located in the county of San Mateo, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
Waiver and Severability of Terms.
The failure of Smoopa to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Right of Survivorship and Non-Transferability.
You agree that your Smoopa account is non-transferable and any rights to your Smoopa account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Smoopa Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
VIOLATIONS
Please report any violations of the TOS to smoopa@smoopa.com.
Last updated July 14, 2011
Smoopa, Inc. (“Smoopa”) provides the Smoopa Services (defined below) to you subject to the following Terms of Service (“TOS”), which may be updated by Smoopa from time to time without notice to you. You can review the most current version of the TOS at any time at: http://www.smoopa.com/terms. By accessing and using the Smoopa Services, you accept and agree to be bound by the terms and provision of the TOS. In addition, when using particular Smoopa owned or operated services, you and Smoopa shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
DESCRIPTION OF SMOOPA SERVICES
Smoopa provides users with access to local shopping information and related services, which may be accessed through products, services, and websites owned and/or operated by Smoopa, and any various medium or device now known or hereafter developed (collectively, the “Smoopa Services”). Unless explicitly stated otherwise, any new features that augment or enhance the current Smoopa Services, including the release of new Smoopa properties, shall be subject to the TOS.
You understand and agree that the Smoopa Services may include advertisements and that these advertisements may be targeted to the content or information on the Smoopa Services, queries made through the Smoopa Services, or other information, and that Smoopa may use any information provided by you to Smoopa in order to target ads and other communications to you. The types and extent of advertising on the Smoopa Services are subject to change. In consideration for Smoopa granting you access to and use of the Smoopa Services, you agree that Smoopa and its third party providers and partners may place such advertising on the Smoopa Services or in connection with the display of content or information from the Smoopa Services whether submitted by you or others. You also understand and agree that the Smoopa Services may include certain communications from Smoopa, such as service announcements, administrative messages, and price alerts.
You understand and agree that the Smoopa Services is provided “AS-IS” and that Smoopa assumes no responsibility for the accuracy, timeliness, deletion or mis-delivery of, or failure to store or maintain any user information, personalization settings, or other information or communications. You are responsible for obtaining access to the Smoopa Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Smoopa Services.
You understand that the technical processing and transmission of the Smoopa Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Smoopa does not warrant that the Smoopa Services, nor any content, whether generated by you, by Smoopa, or otherwise, will be available at all times, will be maintained for any particular period of time, or will be error-free.
SMOOPA REWARDS
You can participate in the Smoopa Rewards service if you are 13 years or older, reside in the United States and satisfy the requirements described in the TOS. If you are younger than 18 years of age, then you must ensure your parents consent to your using the service and redeeming rewards. Smoopa Rewards is a service for you to accumulate rewards for making qualifying purchases through your use of Smoopa. These rewards may be redeemed later only when requested from within the United States via the payment method that you select.
After receiving a special offer, you may submit a claim by following the instructions of the offer and providing proof of purchase and other information. Submitted materials become property of Smoopa. We may share your information with stores and our business partners in order to help us address customer support and other issues related to your participation in this service. Limit one reward per offer. Duplicate or incomplete claims will not be honored. The claim must be submitted within thirty (30) days of your purchase. Claims submitted more than thirty (30) days after the purchase date may not be processed.
You may earn up to Two Thousand Five Hundred U.S. Dollars ($2,500.00) of rewards in a calendar year, calculated based on when the claims are approved. For in-store purchases, you must purchase the product for the price, on the date and in the store indicated. For online purchases, you must purchase the item using a listing in the Smoopa app or from http://www.smoopa.com/history. You will not earn rewards where (a) you provide false or misleading information; (b) the store, price, or date does not appear on the receipt; (c) the order is later cancelled or the goods or services are later returned; (d) the store cannot verify your purchase; (e) the goods or services are acquired for resale or other business purposes; (f) you exceed the annual monetary cap on rewards; (g) you make a purchase from yourself or from entities that you control or otherwise in collusion with other people; (h) you close your browser or open the store's web site in a different web browser or tab; (i) you click away from the store after clicking on an eligible listing; (j) your browser is not configured to accept cookies; (k) the purchase is not completed in the same web browsing session in which you click on the eligible listing.
To participate in the service you must set up a Smoopa account by providing all of the required registration information. You must keep this account information up to date, accurate and secure. You may not barter, trade or otherwise exchange your account or maintain more than one account.
You must ensure that we properly post rewards to your account. If you believe that you have earned rewards that are not posted to your account, we may not consider posting them to your account unless you contact us within three months after the date of the associated purchase. We may require additional documentation to support your claim.
Smoopa rewards have no monetary value until the associated purchases are approved and you make a proper redemption request. You may request redemptions from your account, subject to then-current minimum redemption requirements. We may offer additional redemption options at any time. You may be taxed on your rewards, depending on the amount of rewards you accrue and the tax laws of federal, state, and local jurisdictions. You are solely responsible for any tax liability from your participation in the service.
We may disqualify transactions, reverse previously paid rewards, refuse redemptions and/or close your account at any time if you participate in any fraud or abuse relating to the service (including, without limitation, conducting "sham" transactions or otherwise colluding with merchants), make any misrepresentation in connection with your participation in the service, maintain multiple accounts or do not otherwise comply with this TOS. We also may close your account if it has been inactive for 12 months. Accrued but unredeemed Smoopa rewards in accounts that are closed will be returned to Smoopa.
The determination of whether or not a purchase is eligible for a reward is at the sole discretion of Smoopa. All rewards are subject to review. We may apply necessary adjustments to accounts at any time at our sole discretion. If you do not agree to adjustments made to your account, your only recourse will be to terminate your Smoopa account and withdraw from the Smoopa Rewards service.
YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Smoopa Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Smoopa Services under the laws of the United States or other applicable jurisdiction.
In order to access certain features of the Smoopa Services, you must create a user account with us. You may register only one user account. When you create an account, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Smoopa’s registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Smoopa suspects that such information is untrue, inaccurate, not current or incomplete, Smoopa has the right to suspend or terminate your account and refuse any and all current or future use of the Smoopa Services (or any portion thereof). Notwithstanding the foregoing, Smoopa undertakes no obligation to ensure, and makes no representation to you, that information (including but not limited to Registration Data) provided by other Smoopa users is true, accurate, current or complete. During the registration process, you may be asked to choose a username. Smoopa may refuse or revoke registration of a username for any reason in its sole and absolute discretion. In particular, however, you may not use a username for the purpose of impersonating another person or entity, nor use a username which is illegal, offensive, infringing upon the rights of others, or which is in breach of the TOS in any other way. Smoopa reserves the right to remove or reclaim inactive usernames, and to assign such usernames to other accounts or users.
SMOOPA PRIVACY POLICY
Registration Data and certain other information about you are subject to our applicable privacy policy. For more information, see the full Smoopa Privacy Policy at http://www.smoopa.com/privacy. You understand that through your use of the Smoopa Services you consent to the collection, use and disclosure (as set forth in the applicable privacy policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Smoopa and its affiliates.
PASSWORD AND SECURITY
You are responsible for maintaining the confidentiality of any passwords provided for use of the Smoopa Services, and are fully responsible for all activities that occur under your password or account, whether or not you have authorized such activities or actions. You agree to immediately notify Smoopa of any unauthorized use of your password or account or any other breach of security. Smoopa cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements or from unauthorized use of your password or account.
MEMBER CONDUCT
You understand that the Smoopa Services are available for your personal, non-commercial use only and that all information, text, photographs, or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Smoopa, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Smoopa Services. Smoopa does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Smoopa Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Smoopa be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Smoopa Services.
You agree to not access or use the Smoopa Services to:
a. submit, upload, post, email, transmit or otherwise make available any information that is known or believed by you to be false, inaccurate, or misleading;
b. submit, upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
c. harm minors in any way;
d. impersonate any person or entity, including, but not limited to, a Smoopa official, merchant, guide, or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Smoopa Service;
f. submit, upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
g. submit, upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
h. submit, upload, post, email, 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;
i. submit, upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
j. interfere with or disrupt the Smoopa Services or servers or networks connected to the Smoopa Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Smoopa Services, including using any device, software or routine to bypass our robot exclusion headers;
k. intentionally or unintentionally violate any applicable local, state, national or international law;
l. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
m. “stalk” or otherwise harass another;
n. collect or store personal data about other users; and/or
o. systematically or programmatically harvest information from the Smoopa Services, whether through the use of bots, scrapers, query engines, data miners or other automated means.
You acknowledge that Smoopa may or may not pre-screen Content, but that Smoopa and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Smoopa Services. Without limiting the foregoing, Smoopa and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable.
YOU AGREE THAT YOU MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SMOOPA SERVICES, INCLUDING BUT NOT LIMITED TO ANY CONTENT, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF SUCH CONTENT. BECAUSE CONTENT ON THE SMOOPA SERVICES IS SUBMITTED BY INDIVIDUAL USERS AND MERCHANTS, NO GUARANTEES ARE MADE IN REGARD TO THE ACCURACY OF THE PRICE, STORE NAME, STORE LOCATION, ITEM DESCRIPTION, OR OTHER VARIABLES OR INFORMATION. YOU SHALL BRING NO ACTION AGAINST SMOOPA NOR ANY OTHER SMOOPA USER, REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, UNTIMELINESS, UNAUTHENTICATED INFORMATION, OR OTHER DEFECTS IN THE INFORMATION OR CONTENT ACCESSIBLE THROUGH THE SMOOPA SERVICES. IN THIS REGARD, YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY CONTENT CREATED BY SMOOPA OR SUBMITTED TO SMOOPA IS AT YOUR OWN RISK, AND THAT ALL SUCH CONTENT IS FURNISHED “AS-IS” AND WITH ALL FAULTS.
You acknowledge, consent and agree that Smoopa may access, preserve and disclose your account information, Registration Data, and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Smoopa, its users and the public.
SPECIAL ADMONITIONS FOR INTERNATIONAL USE AND EXPORT AND IMPORT COMPLIANCE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of the Smoopa Services and transfer, posting and uploading of software, technology, and other technical data via the Smoopa Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, you: (a) represent that you are not a party identified on any government export exclusion list, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists, nor will you transfer software, technology, and other technical data via the Smoopa Services to parties identified on such lists; (b) agree not to use the Smoopa Services for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws; (c) agree not to transfer, upload, or post via the Smoopa Services any software, technology or other technical data in violation of U.S. or other applicable export or import laws.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SMOOPA SERVICES
Smoopa does not claim ownership of Content you submit or make available for inclusion on the Smoopa Services. However, by submitting Content to any part of the Smoopa Services, you grant, and you represent and warrant that you have the right to grant, to Smoopa a royalty free, irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), modify, prepare derivative works from, and distribute such Content for any purpose, to incorporate such Content into other works and to grant and authorize sublicenses of the foregoing.
CONTRIBUTIONS TO SMOOPA
By submitting questions, comments, suggestions, ideas, feedback, or other information (“Contributions”) to Smoopa, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Smoopa is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Smoopa shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Smoopa may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Smoopa without any obligation of Smoopa to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Smoopa under any circumstances.
INDEMNITY
You agree to indemnify and hold Smoopa and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the Smoopa Services, your use of the Smoopa Services, your connection to the Smoopa Services, your violation of the TOS, or your violation of any rights of another.
NO COMMERCIAL REUSE OF SMOOPA SERVICES
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Smoopa Services (including Content, advertisements, and your Smoopa account).
GENERAL PRACTICES REGARDING USE
You acknowledge that Smoopa may establish general practices and limits concerning use of the Smoopa Services at any time, at Smoopa’s discretion, including without limitation the maximum number of days that data, images, or other uploaded Content will be retained by the Smoopa Services, the maximum amount of information that can be submitted by an account, the maximum disk space that will be allotted on Smoopa’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Smoopa Services in a given period of time. You agree that Smoopa has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Smoopa Services. You acknowledge that Smoopa reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Smoopa reserves the right to modify these general practices and limits from time to time.
MODIFICATIONS TO SMOOPA SERVICES
Smoopa reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Smoopa Services (or any part thereof) with or without notice. You agree that Smoopa shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Smoopa Services (or any part thereof).
TERMINATION
You may terminate your Smoopa account and access to the Smoopa Services by submitting such termination request to Smoopa.
You agree that Smoopa may, without prior notice, immediately terminate, limit your access to, or suspend your Smoopa account and access to the Smoopa Services. Cause for such termination, limitation of access, or suspension shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to the Smoopa Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, and/or (f) engagement by you in fraudulent or illegal activities. Further, you agree that all terminations, limitations of access, and suspensions for cause shall be made in Smoopa’s sole discretion and that Smoopa shall not be liable to you or any third party for any termination of your account or access to the Smoopa Services.
Termination of your Smoopa account includes any or all of the following: (a) removal of access to all or part of the offerings within the Smoopa Services, (b) deletion of your password and all related information, files and Content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of the Smoopa Services.
DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Smoopa Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Smoopa shall 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 Smoopa Services.
You acknowledge that Smoopa does not sell, resell or license any products listed on the Smoopa Services, nor is Smoopa acting as an agent of sale. You acknowledge that Smoopa disclaims any responsibility for or liability related to such products (see Disclaimer of Warranties below). You agree to direct any question, complaint or claim about merchants (for example, about their products, customer service for their products or delivery) to the appropriate merchant or seller.
Smoopa does not warrant that product descriptions, prices, or other Content on the Smoopa Services, regardless of its source, is accurate, complete, reliable or current. Such Content is provided for informational purposes only and does not constitute an endorsement by Smoopa of any product, service, or merchant. You should not rely on such information in situations where its inaccuracy would cause you to suffer any loss. Smoopa assumes no liability for inaccuracy or incompleteness in its search results, prices, or other Content on the Smoopa Services.
LINKS
The Smoopa Services may provide, or third parties may provide, links to other sites or resources. You acknowledge and agree that Smoopa is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Smoopa shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
SMOOPA’S PROPRIETARY RIGHTS
You acknowledge and agree that the Smoopa Services and any necessary software used in connection with the Smoopa Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in advertisements or information presented to you through the Smoopa Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Smoopa or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Smoopa Services, any content you receive as part of the Smoopa Services (including Content) or the Software, in whole or in part.
Except for your own Content, you may not republish any content you receive through the Smoopa Service (including Content) on any Internet, Intranet, or Extranet site or incorporate the information in any other database or compilation without the prior written permission of Smoopa. Use of any data mining, robots or similar data gathering or extraction methods is strictly prohibited for any purpose.
Smoopa grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Smoopa Services. You agree not to access the Smoopa Services by any means other than through the interface that is provided by Smoopa for use in accessing the Smoopa Services.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SMOOPA SERVICES AND SOFTWARE ARE AT YOUR SOLE RISK. THE SMOOPA SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SMOOPA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. SMOOPA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SMOOPA SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THE SMOOPA SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SMOOPA SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SMOOPA SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SMOOPA SERVICES OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMOOPA OR THROUGH OR FROM THE SMOOPA SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SMOOPA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SMOOPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SMOOPA SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SMOOPA SERVICE; OR (e) ANY OTHER MATTER RELATING TO THE SMOOPA SERVICE.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.
NOTICE
Smoopa may provide you with notices, including those regarding changes to the TOS, including by but not limited to email, regular mail, postings on the Smoopa Services, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate this TOS by accessing the Smoopa Services in an unauthorized manner. Your agreement to this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the Smoopa Services in an authorized manner.
TRADEMARK INFORMATION
You agree that all of Smoopa’s trademarks, trade names, service marks and other Smoopa logos and brand features, and product and service names are trademarks and the property of Smoopa Inc. (the “Smoopa Marks”). Without Smoopa’s prior permission, you agree not to display or use in any manner the Smoopa Marks.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
Smoopa respects the intellectual property of others, and we ask our users to do the same. Smoopa may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. 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 Smoopa’s Copyright Agent 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 site;
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;
f. a statement by you, made under penalty of perjury, that the above information in your notice 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.
Smoopa’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail:
Copyright Agent
c/o Smoopa Inc.
2183 Santa Cruz Ave.
Menlo Park, CA 94025
By email:
smoopa@smoopa.com
GENERAL INFORMATION
Entire Agreement.
The TOS and the Smoopa Privacy Policy together constitute the entire agreement between you and Smoopa and governs your use of the Smoopa Services, superseding any prior version of this TOS between you and Smoopa with respect to the Smoopa Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Smoopa services, affiliate services, third-party content or third-party software.
Choice of Law and Forum.
You and Smoopa each agree that the TOS and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and Smoopa, shall be brought exclusively in the courts located in the county of San Mateo, California. You and Smoopa agree to submit to the personal jurisdiction of the courts located in the county of San Mateo, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
Waiver and Severability of Terms.
The failure of Smoopa to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Right of Survivorship and Non-Transferability.
You agree that your Smoopa account is non-transferable and any rights to your Smoopa account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Smoopa Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
VIOLATIONS
Please report any violations of the TOS to smoopa@smoopa.com.
Last updated July 14, 2011