Terms of Service
Effective Date: January 1, 2021
Hello and welcome to SmartyPants Terms of Service!
These Terms of Service (“Terms”) cover your use of and access to the sites, templates, products, applications, tools, services and features (collectively, the “Services”) provided by SmartyPants (as defined below).
Please read this Agreement (as defined below) as it includes important information about your legal rights, and covers areas such as automatic subscription renewals, warranty disclaimers, limitations of liability, the resolution of disputes by arbitration and a class action waiver. Please note if you are an EU Consumer (as defined below), some of these provisions may not apply to you and you may be entitled to specific rights under the mandatory laws of the country in which you live.
- Creating Accounts
Make sure your account information is accurate and that you keep your accounts safe. You’re responsible for your accounts and any activity on them. Also, you need to be at least 16 years old to use SmartyPants Services.
1.1. Signing Up. To use many of the Services, you must first purchase a SmartyPants Simple Site, thus creating an account (“Account”). You agree to provide us with accurate, complete and at all times up to date information for your Accounts. We may need to use this information to contact you.
1.2. Staying Safe. Please safeguard your Accounts and make sure others don’t have access to your Accounts or passwords and other authentication credentials (collectively, “passwords”). You’re solely responsible for any activity on your Accounts and for maintaining the confidentiality and security of your passwords. We’re not liable for any acts or omissions by you or anyone else in connection with your Accounts. You must immediately notify us if you know or have any reason to suspect that your Accounts or passwords have been stolen, misappropriated or otherwise compromised or in case of any actual or suspected unauthorized use of your Accounts.
1.3. Sixteen And Older. The Services are not intended for and may not be used by children under the age of 16. By using the Services, you represent that you’re at least 16. If you’re under the age of 18, depending on where you live, you may need to have your parent or guardian’s consent to this Agreement and they may need to enter into this Agreement on your behalf.
- Your Content
When you upload content to the SmartyPants website, the shared SmartyPants Drive or your SmartyPants Site, you still own it (“Your Site/SmartyPants Site” means the website created or published using the Services). You do, however, give us permission to use content in ways necessary to provide, improve, promote and protect our services. For example, when you upload a photo, you give us the right to save it and display it on your site or story at your direction. We also may promote or feature your site or story, but you can opt out if you don’t want us to do that.
2.1. Your User Content Stays Yours. Users of the Services (whether you or others) may provide us with content, including without limitation text, photos, images, audio, video, fonts, logos, stickers, code and any other materials (“User Content”). Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Services as described in this Agreement. User Content includes without limitation content you post to Your Site.
2.2. Your License To Us. When you provide User Content via the Services, you grant SmartyPants (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Services. This Section does not affect any rights you may have under applicable data protection laws.
2.3. Featuring Your Site. We may choose to feature Your Site or names, trademarks, service marks or logos included on Your Site. You grant us a perpetual, worldwide, royalty-free, non-exclusive right and license to use any version of Your Site, or any portion of Your Site, including without limitation names, trademarks, service marks or logos on Your Site, for the limited purpose of SmartyPants marketing and promotional activities. For example, we may feature Your Site on our website, on the Customers sections of our sites or on our social media accounts. You waive any claims against us relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in or to Your Site or names, trademarks, service marks or logos on Your Site and any right of inspection or approval of any such use. You can opt out of being featured through email to email@example.com. This Section does not affect any rights you may have under applicable data protection laws.
- Your Responsibilities
You’re responsible for the content you publish on SmartyPants, and you vouch to us that it’s all okay to use. Please follow our rules and don’t do anything illegal with the services. Also keep in mind that what you upload may be publicly viewable.
3.1. Only Use Content You’re Allowed To Use. You represent and warrant that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions necessary to use, share, display, transfer and license your User Content via the Services and in the manner set forth in this Agreement. If we use your User Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Also, content on the Services may be protected by others’ intellectual property, trade secret or other rights. Please don’t copy, upload, download or share content unless you have the right to do so.
3.2. Follow The Law. You represent and warrant that your use of the Services is in compliance with applicable laws, including without limitation applicable export or import controls and regulations and sanctions.
3.3. Share Responsibly. The Services let you share User Content including without limitation on social media and the open web, so please think carefully about your User Content. We’re not responsible for what you share via the Services.
3.4. Comply With Our Acceptable Use Policy. You must comply with our Acceptable Use Policy. You represent and warrant that your User Content and your use of the Services complies with our Acceptable Use Policy.
3.5. Your Site And Your End Users Are Your Responsibility. Your Sites may have their own visitors, customers and users (“End Users”). You understand and agree that (a) Your Site and your End Users are your responsibility; (b) you’re solely responsible for providing products, services and support to your End Users; and (c) you’re solely responsible for compliance with any laws or regulations related to Your Sites and/or your End Users. We’re not liable for, and won’t provide you with any legal advice regarding, Your Sites or your End Users. This does not limit or affect any liability we may have to you separately for any breach of the other provisions of this Agreement.
3.6. HIPAA Enabled Accounts. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, such as HIPAA, you will be solely responsible for such compliance, except to the extent SmartyPants has agreed with you in writing otherwise. You are not permitted to use the Services in any way that would subject SmartyPants to such industry-specific regulations without obtaining SmartyPants prior written agreement. For example, you may not use any Services to collect, use, disclose, protect or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under US federal regulations) unless your Account for such Services is designated as HIPAA-enabled and you enter into a separate business associate agreement with SmartyPants.
3.7. California Consumer Privacy Act. With respect to the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 – 1798.199), as may be modified from time to time (collectively, “CCPA”), solely if applicable to you and solely with respect to data of your “Consumers” (as defined under the CCPA) which meets the definition of “Personal Information” under the CCPA and for which you are responsible under the CCPA (“Service Provider PI”), the parties agree that SmartyPants acts as a “Service Provider” and you are a “Business” (as such terms are defined under the CCPA). SmartyPants and you shall comply with our and your respective obligations under the CCPA. For example, SmartyPants shall not sell your Service Provider PI or otherwise disclose your Service Provider PI for a commercial purpose. Notwithstanding the foregoing, you agree that in accordance with the CCPA, SmartyPants may: (a) use Service Provider PI internally to build and improve the quality of the Services; or (b) combine Personal Information of the End Users of you or other Businesses for which SmartyPants is a Service Provider for the purposes of detecting data security incidents or protecting against fraudulent or illegal activity. This combined Personal Information includes IP addresses, preferences, web pages visited prior to coming to your or another Business’ website, information about browser, network or device (such as browser type and version, operating system, internet service provider, preference settings, unique device IDs and language and other regional settings), and information about how End Users interact with your or another Business’ website (such as timestamps, clicks, scrolling, browsing times and load times).
- Third Party Services And Sites, User Content, SmartyPants Specialists and SmartyPants Extensions
If you use or connect another service on or to SmartyPants, follow a link to another site or work with someone you find on or through SmartyPants (such as a specialist), what happens is between you and them. We’re not responsible for it or what either of you do. There’s also a lot of content on SmartyPants uploaded by our users (like you). We’re not responsible for that either.
4.1. Third Party Services. The Services are integrated with various third party services and applications (collectively, “Third Party Services”) that may make their content, products or services available to you. Examples of Third Party Services includes but is not limited to; ICD Soft, WordPress, Elegant Themes, WooCommerce, Cosmoslabs, Let’s Encrypt, TMS Ltd., social media platforms, SmartyPants Specialists (as defined below), eCommerce Payment Processors (as defined below), and extensions (as defined below) and other integrations or extensions, stock images and email service subscriptions for sale via the Services and other integration partners and service providers. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don’t control Third Party Services, and we’re not liable for Third Party Services or for any transaction you may enter into with them, or for what they do. When using Third Party Services, your security is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We’re not liable for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses, or business disruption, costs or expenses you may incur or otherwise experience as a result (except where prohibited by applicable law).
4.2. Third Party Sites. The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don’t control and aren’t liable for those sites and what those third parties do.
4.3. User Content. The Services or sites created using the Services may contain User Content: (a) that is offensive or objectionable; (b) that contains errors; (c) that violates intellectual property, trade secret, privacy, publicity or other rights or the good name of you or third parties; (d) that is harmful to your or others’ computers or networks; (e) that is unlawful or illegal; or (f) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. By operating the Services, we don’t represent or imply that we endorse your or other users’ User Content, or that we believe such User Content to be accurate, useful, lawful or non-harmful. We’re not a publisher of, and we’re not liable for, any User Content uploaded, posted, published or otherwise made available via the Services by you or other users. You’re responsible for taking precautions to protect yourself, your Accounts, and your computer or network, from User Content accessed via the Services.
4.4. SmartyPants Specialists. Certain parts of the Services may provide directories of, and information about, independent third party SmartyPants users, including users designated as experts (collectively, “SmartyPants Specialists”) who can help you use the Services. SmartyPants does not employ, is not affiliated with and does not endorse SmartyPants Specialists. SmartyPants Specialists are a Third Party Service, as defined in Section 4.1.
- Our Intellectual Property
SmartyPants is protected by various intellectual property laws. This section summarizes what we own and how we share.
5.1. SmartyPants Owns SmartyPants. The Services are, as between you and SmartyPants, owned by SmartyPants, and are protected by copyright, trade secret, trademark and other US and foreign laws. This Agreement doesn’t grant you any right, title or interest in the Services, others’ User Content, our trademarks, logos or other brand features or intellectual property or trade secrets or others’ content in the Services. You agree not to change, modify, translate or otherwise create derivative works of the Services or others’ User Content.
5.2. We Can Use Your Feedback For Free. We welcome your feedback, ideas or suggestions (collectively, “Feedback”), but you agree that we may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated. This Section does not limit or affect any rights you may have under applicable data protection laws.
5.3. Our Demo Content. We may provide templates or other products featuring demo content, including without limitation text, photos, images, graphics, audio and video (collectively, “Demo Content”), to provide you with ideas or inspiration. Unless we tell you otherwise, Demo Content (or any portion of it) may not remain on Your Site or be distributed, publicly displayed, publicly performed or otherwise published.
5.4. Templates. The Services include social, website or other templates (collectively, “Templates”). The Templates include without limitation Demo Content, designs, layouts, stickers, stamps, overlays, elements and other materials. SmartyPants owns the Templates. You may not use any Template in any way, intentional or otherwise, that competes, as determined by us in our sole discretion, with the Services.
5.5. Our Betas Are Still In Beta. We may release products and features that we’re still testing and evaluating. Those Services will be marked as beta, preview or early access (or a similar phrasing), and may not be as reliable as our other Services.
- Our Rights
To operate effectively and protect the security and integrity of SmartyPants, we need to maintain control over our services.
6.1. Important Things We Can Do. We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by applicable law): (a) we may change parts or all of the Services and their functionality; (b) we may suspend or discontinue parts or all of the Services; (c) we may terminate, suspend, restrict or disable your access to or use of parts or all of the Services; (d) we may terminate, suspend, restrict or disable access to your Accounts or parts, some or all of Your Sites; and (e) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
6.2. Ownership Disputes. Sometimes ownership of an Account or site is disputed between parties, such as a business and its employees, or a web designer and a client. We try not to get involved in these disputes. However, we reserve the right, at any time and in our sole discretion, and without notice to you, to determine rightful Account or site ownership and to transfer an Account or site to such owner. Our decision in that respect is final. If we feel that we can’t reasonably determine the rightful owner, we reserve the right to suspend an Account or site until the disputing parties reach a resolution. We also may request documentation, such as a government-issued photo ID, credit card invoice or business license, to help determine the rightful owner.
6.3. HTTPS Encryption. We may offer HTTPS encryption for Your Sites. By registering a custom domain via the Services, or pointing a custom domain to the Services, you authorize us to create and maintain a certificate for the limited purpose of providing HTTPS for Your Sites.
7.2. Data Processing Addendum.
7.3. You Must Comply With Data Protection, Security And Privacy Laws. You agree and warrant that you are solely responsible when using Your Sites or the Services for complying with applicable data protection, security and privacy laws and regulations (including, where applicable, the EU General Data Protection Regulation and the EU e-Privacy Directive/Regulation), including any notice and consent requirements. This includes without limitation the collection and processing by you of any personal data, when you use Your Sites and the Services to send marketing and other electronic communications to individuals and when using cookies and similar technologies on Your Sites (including, in particular, those which we place for you at your request as part of the Services, such as to undertake analytics for you).
We comply with copyright law, and respond to complaints about copyright infringement in accordance with our Copyright Policy.
We respect the intellectual property of others and ask that you do too. We reserve the right to delete or disable content alleged to be infringing, and to terminate Accounts of repeat infringers without any refunds.
- Paid Services And Fees
Certain Services are paid services. This section explains how we handle payments for those paid services. For certain paid services, such as domain registrations and site subscriptions, we’ll automatically bill you in regular intervals (such as monthly or annually) unless you disable auto-renewal or cancel your subscription. You can do that anytime.
9.1. Fees. You can access certain portions of the Services by submitting a fee payment (such services, “Paid Services”). Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. We’ll tell you about fees for Paid Services before charging you. You may cancel Paid Services at any time via the Services. If you don’t pay for Paid Services on time, we reserve the right to suspend or cancel your access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Services, and we’ll tell you about those fees before charging you. Our fees will appear on an invoice that we provide via the Services, within your eCommerce Payment Processor account(s) and/or on a mobile app store invoice, unless otherwise indicated. Please note that different Paid Services have different fees and payment schedules, and canceling one Paid Service may not cancel all your Paid Services.
9.2. Taxes. All fees are exclusive of applicable national, provincial, state, local or other taxes (“Taxes”), unless explicitly stated otherwise. You’re responsible for all applicable Taxes, and we’ll charge Taxes in addition to the fees for the Services when required to do so. If you’re exempt from Taxes, you must provide us with valid tax exemption documentation. We reserve the right to determine if the documentation provided is valid. Tax exemption will, provided we’re satisfied it’s valid and applicable, only apply from and after the date we receive such documentation. If SmartyPants has a legal obligation to pay or collect indirect Taxes (such as value-added tax or goods and services tax) on the sale to you under the laws of your country (where you are established, have a permanent address or usually reside), you shall be liable for payment of any such indirect Taxes. Where SmartyPants does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to you, you may be required to self-assess those Taxes under the applicable laws of your country (where you are established, have a permanent address or usually reside).
9.3. Automatic Subscription Renewals. To ensure uninterrupted service, we’ll automatically bill you for certain Paid Services from the date you submit your initial payment and on each renewal period or amount afterwards until cancellation. Your renewal period will be equal in time or amount to the renewal period of your current subscription. For example, if you’re on a monthly subscription plan, each billable renewal period will be for one (1) month. We’ll automatically charge you the applicable amount using the payment method you have on file with us and by agreeing to this Agreement, you authorize us to do this. We’ll let you know in advance if you’re purchasing a Paid Service that includes auto-renewal payments. You can disable auto-renewal at any time by emailing firstname.lastname@example.org .
9.4. Refunds. While you may cancel any Paid Services at any time, you won’t be issued a refund except in our sole discretion, or if legally required. Some of the Paid Services offer a free trial so you can try out your subscription. Please note applicable statutory rights of cancellation may not result in a refund, as we do not charge for this trial period.
9.5. Fee Changes. We may change our fees at any time. We’ll provide you with advance notice of these fee changes via the Services. New fees will not apply retroactively. If you don’t agree with the fee changes, you have the right to reject the change by canceling the applicable Paid Service before your next payment date.
9.6. Chargebacks. If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Account. If you have questions about a payment made to us, we encourage you to contact email@example.com before filing a Chargeback. We reserve our right to dispute any Chargeback.
9.8. Fees For Third Party Services. Third Party Services purchased via the Services may be subject to different refund or other policies that those Third Party Services determine, and such Third Party Services may be non-refundable. The purchase terms and conditions for such Third Party Services may be displayed during the purchase process, such as through a link to the purchase terms and conditions. It’s your responsibility to verify your ability to purchase, cancel or obtain a refund for a Third Party Service. Unless otherwise stated in this Agreement, we don’t offer refunds for purchases of Third Party Services.
- Term And Termination
Either of us can end this agreement at any time.
This Agreement will remain in effect until terminated by either you or us. You may terminate this Agreement at any time via the Services. We reserve the right to change, suspend or discontinue, or terminate, restrict or disable your use of or access to, parts or all of the Services or their functionality at any time at our sole discretion and without notice. For example, we may suspend or terminate your use of part or all of the Services if you’re violating these Terms or our Acceptable Use Policy. We will endeavor to provide you reasonable notice upon suspending or terminating part or all of the Services. All sections of this Agreement that by their nature should survive termination shall survive termination, including without limitation the following sections in these Terms and any similar sections or provisions in the rest of this Agreement: Your Content, Our Intellectual Property, Warranty Disclaimers, Limitation of Liability, Indemnification, Dispute Resolution and Additional Terms.
- Warranty Disclaimers
We work hard to make SmartyPants great, but the services are provided as is, without warranties.
12.1. Disclaimers. To the fullest extent permitted by applicable law, SmartyPants makes no warranties, either express or implied, about the Services. The Services are provided “as is” and “as available”. SmartyPants also disclaims any warranties of merchantability, fitness for a particular purpose and non-infringement. No advice or information, whether oral or written, obtained by you from SmartyPants, shall create any warranty. SmartyPants makes no warranty or representation that the Services will: (a) be timely, uninterrupted or error-free; (b) meet your requirements or expectations; or (c) be free from viruses or other harmful components.
12.2. Exceptions. Under certain circumstances, some jurisdictions don’t permit the disclaimers in Section 12.1, so they may not apply to you. However, the disclaimers apply to the maximum extent permitted by applicable law. You may have other statutory rights and nothing in this Agreement affects your statutory rights or rights under mandatory laws. The duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by applicable law.
- Limitation Of Liability
If something bad happens as a result of your using SmartyPants, our liability is capped.
Unless you are an EU Consumer, you acknowledge and agree that to the fullest extent permitted by applicable law, in no event will SmartyPants and its affiliates and its and their directors, officers, employees and agents be liable with respect to any claims arising out of or related to the Services or this Agreement for: (a) any indirect, special, incidental, exemplary, punitive or consequential damages; (b) any loss of profits, revenue, data, goodwill or other intangible losses; (c) any Losses (as defined below) related to your access to, use of or inability to access or use parts, some or all of your Account, Your Sites or parts or all of the Services, including without limitation interruption of use or cessation or modification of any aspect of the Services; (d) any Losses related to unavailability, degradation, loss, corruption, theft, unauthorized access or, unauthorized alteration of, any content, information or data, including without limitation User Content and Your eCommerce data; (e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or (f) any Third Party Services or third party sites accessed via the Services. If you are an EU Consumer, we shall, despite any other provision in this Agreement, provide the Services with reasonable care but will not be liable for any losses which were not a reasonably foreseeable consequence of our breach of this Agreement (except in relation to death or personal injury resulting from our negligence or fraud). These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not SmartyPants has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed its essential purpose. To the fullest extent permitted by applicable law (whether or not you are an EU Consumer), in no event shall the aggregate liability of SmartyPants for all claims arising out of or related to the Services and this Agreement exceed the greater of twenty dollars ($20) or the amounts paid by you to SmartyPants in the twelve (12) months immediately preceding the event that gave rise to such claim. If you are an EU Consumer, SmartyPants is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors or other vicarious agents. An “EU Consumer” means a natural person acting for purposes outside their trade, business, craft or profession (as opposed to a User for business or commercial purposes) habitually residing in the European Economic Area.
If you do something that gets us sued, you’ll cover us.
To the fullest extent permitted by law, you agree to indemnify and hold harmless SmartyPants and its affiliates and its and their directors, officers, employees and agents from and against all damages, losses, liabilities, costs, claims, demands, fines, awards and expenses of any kind (including without limitation reasonable attorneys’ fees and costs) (collectively, “Losses”) arising out of or related to: (a) your breach of this Agreement; (b) your User Content, Your Sites and Your eCommerce; (c) any claims by, on behalf of or against your End Users; (d) your violation of any law or regulation or the rights or good name of any third party; and (e) any claims from tax authorities in any country in relation to Your eCommerce operations, including without limitation your sales to individual consumers (including distance sales) and other operations for which SmartyPants may be held jointly and severally liable. Your indemnification obligations under this Section shall not apply to the extent directly caused by our breach of this Agreement or, where you are an EU Consumer, to the extent that the consequences were not reasonably foreseeable.
- Dispute Resolution
This section may not apply to you. If it does, before filing a claim against SmartyPants, you agree to try to work it out informally with us first. Also, all formal disputes must be resolved through arbitration following the rules described below, unless you opt out of arbitration following the procedure described below. Finally, claims can only be brought individually, and not as part of a class action.
15.1. Applicability. This Section 15 shall only apply to: (a) Canada/US Users; (b) Canada/US Users who are not EU Consumers; or (c) EU Consumers who bring any claim against SmartyPants in the US (to the extent not in conflict with Section 16.2).
15.2. Informal Resolution. Before filing a claim against SmartyPants, you agree to try to resolve the dispute by first emailing firstname.lastname@example.org with a description of your claim. We’ll try to resolve the dispute informally by following up via email, phone or other methods. If we can’t resolve the dispute within thirty (30) days of our receipt of your first email, you or SmartyPants may then bring a formal proceeding.
15.3. Arbitration Agreement. Unless you opt-out during the Opt-Out Period in accordance with Section 15.4, you and SmartyPants agree to resolve any claims, disputes and matters arising out of or in connection with this Agreement (including without limitation its existence, formation, operation and termination) and/or the Services (including without limitation non-contractual disputes and matters) through final and binding arbitration and you and SmartyPants expressly waive the right to formal court proceedings (including without limitation trial by jury), except as set forth below. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration. There is no judge or jury in arbitration, only an experienced, independent third party that will act as the arbitrator, and court review of an arbitration award is limited.
15.4. Arbitration Opt-Out. You can decline this agreement to arbitrate by emailing us at email@example.com within thirty (30) days of the date that you first agree to this Agreement (“Opt-Out Period”). Your email must be sent from the email address you use for your Account, and must include your full name, residential address and a clear statement that you want to opt out of arbitration. If you opt out of arbitration pursuant to this Section 15.4, then Sections 15.3, 15.5, 15.6 and 15.7 of these Terms do not apply to you. This opt-out doesn’t affect any other sections of the Terms, including without limitation Sections 15.9 (Time for Filing), 15.10 (No Class Actions) and 16.2 (Controlling Law; Judicial Forum for Disputes). If you have any questions about this process, please contact firstname.lastname@example.org.
15.5. Arbitration Time For Filing. Any arbitration must be commenced by filing a demand for arbitration within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
15.6. Exceptions To Arbitration Agreement. Notwithstanding anything in this Agreement, either you or SmartyPants may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement or misappropriation (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
15.9. Time For Filing. Any claim not subject to arbitration must be commenced within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
15.10. NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated or representative action. Class actions, class arbitrations, collective actions, private attorney general actions and consolidation with other arbitrations aren’t allowed.
- Additional Terms
This section includes some additional important terms. For instance, this Agreement is the whole agreement between us regarding your use of SmartyPants.If we ever change it in a way that meaningfully reduces your rights, we’ll give you notice and an opportunity to cancel. Also, if you’re reading this in a language other than English, note that the English language version controls.
16.1. Entire Agreement. This Agreement constitutes the entire agreement between you and SmartyPants regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. You agree that you have not relied upon, and have no remedies in respect of, any term, condition, statement, warranty or representation except those expressly set out in this Agreement. You also may be subject to additional terms, policies or agreements that may apply when you use other services, including Third Party Services. This Agreement creates no third party beneficiary rights, and no third party shall have any right or standing to claim benefit or bring an action to enforce this Agreement (except otherwise agreed upon in additional terms between you and a SmartyPants group company that sets forth such SmartyPants group company’s third party beneficiary rights to enforce this Agreement).
16.3. EU Online Dispute Resolution. If you are an EU Consumer, you can access the European Commission’s online dispute resolution platform here. Please note that SmartyPants is not committed nor obliged to use an alternative dispute resolution entity to resolve disputes with you.
16.4. Waiver, Severability And Assignment. Our failure or delay to enforce any provision of this Agreement is not a waiver of our right to do so later. If any provision of this Agreement is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not delegate, transfer or assign this Agreement or any of your rights or obligations hereunder without our prior written consent, and any such attempt will be of no effect. We may delegate, transfer or assign this Agreement or some or all of our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries or to any purchaser of any of our business or assets associated with the Services, with thirty (30) days prior written notice. If you are an EU Consumer, we will ensure that the delegation, transfer or assignment does not adversely affect your rights under this Agreement.
16.5. Modifications. We may modify this Agreement from time to time, and will post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will not apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement and price changes. If you disagree with our changes, then you must stop using the Services and cancel all Paid Services.
16.6. Events Beyond Our Control. We are not in breach of this Agreement or liable to you if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
16.7. Translation. This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.
Terms of Service addition for Hosting/Domain services
All services provided by the Provider may be used for lawful purposes only. Transmission, storage, or presentation of any information, data, or material in violation of any United States Federal, State, or City law is prohibited. This includes, but is not limited to: copyrighted material, material that is threatening or obscene, "adult only" content material, or material, protected by trade secrets and other statute.
Note: Pornography and sex-related merchandising are prohibited. This includes sexual content or direct links to adult content hosted elsewhere. Sites promoting any illegal activity, violence, or content that may be damaging to our servers or any other server, or links to such sites are also prohibited. Examples of non-acceptable content or links are:
- Pirated software or copyrighted MP3 files
- Hacking Tools
- Warez sites
- Adult content (in any form)
- Spamming Software
- Web-based shells
The Provider will be the sole arbiter as to what constitutes a violation of this provision.
The Provider will monitor the customer's disk usage and if it exceeds the usage agreed upon, the Provider shall have the right to take corrective actions. Such corrective actions may include assessment of additional charges or suspension of service.
ACCOUNT RENEWAL POLICY
The Provider does not renew accounts automatically. For the customer's convenience, the Provider will send a renewal reminder to the contact email address on file for the corresponding hosting account. The customer is ultimately responsible for renewing the hosting account through one of the options given by the Provider.
Customers are not allowed to open a second hosting account for a domain that is already hosted through the Provider. If the customer wants to continue hosting the specified domain with the Provider, he/she needs to renew the account using one of the renewal options given by the Provider.
DOMAIN REGISTRATION POLICY
The Provider registers customer domains at the ICANN-accredited registrar Enom Inc. Therefore, all domains registered through the Provider are a subject of the Domain Registration Agreement of Enom Inc.
If you register domain(s) with the Provider, or transfer an existing domain registration, you must be acquainted with the Registration Agreement of Enom Inc.: http://www.enom.com/terms/agreement.asp
By registering/transferring a domain at the Provider, you confirm that you have read and you agree with the Registration Agreement of Enom Inc.
DISPUTE RESOLUTION POLICY
In case of ownership dispute, the Provider reserves the right to be the sole decision maker in settling the dispute. There are several guidelines, based on which the Provider will decide who is the rightful owner of the disputed hosting account or domain name:
- By default, the Provider will grant ownership to the person who paid for the hosting account. If the purchase was made by credit card or PayPal, the holder of the respective credit card or PayPal account will be considered the owner. If the purchase was made by Western Union, bank transfer, or some other similar way, the respective sender of the funds covering the purchase of the account will be considered the owner. The Provider reserves the right to confirm the identity of the owner by contacting him/her by e-mail or telephone, in the same order of preference.
- If the identity of the credit card holder or the sender of the funds as discussed above cannot be confirmed, the Provider will attempt to determine the owner in other ways, which include but are not limited to investigation of log files, investigation of the content hosted under the respective hosting account or domain name, and investigation of the sequence of annual payments for the disputed service.
- In case of death or serious disability of the original owner that prevents him/her from continuing to manage the hosting account or the domain name purchased, the Provider may grant ownership to another person or organization, if enough proof is presented about the original owner's condition, and based solely upon the investigation that the Provider will undertake about this issue.
- The Provider will consider a court decision overruling in case of ownership dispute and will always comply with such a decision.
LOST LOGIN INFORMATION POLICY
In case the customer has lost the hosting account or domain name login information, he/she can request it to be sent to the contact e-mail address for the respective service.
If the contact e-mail address is outdated or incorrect, the customer should contact the Provider to request an investigation of the issue. In this case, the dispute resolution policy may be applied.
Accounts that reach their monthly traffic limit may be a subject of automatic site suspension. Also, any accumulated traffic over the monthly limit will be charged additionally in accordance with the characteristics of the plan purchased. If a site is suspended under this provision, and the hosting account is in good standing, the site will be enabled on the first date of the next month, when the traffic counter is reset. In case of failure to cover fees incurred by traffic over-usage, the Provider reserves the right to take corrective actions such as full suspension of the hosting account. In case the Provider takes corrective actions under this provision, the customer shall not be entitled to a refund of any fees paid in advance.
Running and linking to IRC servers or IRC bots and clients such as Eggdrop, BitchX, ircii, etc., is strictly prohibited.
BACKGROUND RUNNING PROGRAMS
Programs running in the background are not allowed.
To maintain the integrity of our shared hosting services, we have several special per-user resource limits in place. These include, but are not limited to:
- Memory limitations: Customers using shared hosting services will be able to use only a certain portion of the total available memory on the server.
- CPU usage limitations: Scripts that take too much real CPU time will be terminated.
- Simultaneous script execution limitations: Customers will be able to run only a certain amount of CGI scripts simultaneously. Whenever this limitation is triggered, execution of subsequent CGI script requests via the web will produce an error message.
- MySQL disk usage limitations: In cases, in which the integrity of the MySQL service is endangered, the MySQL disk usage of customer accounts may be limited. No limits will be applied to accounts with MySQL disk usage below 3GB.
- Number of inodes limitation: The total number of files and folders on a single hosting account should not exceed 500,000.
- MySQL connections limit: Each MySQL user cannot exceed a certain number of connections to the MySQL server.
The Provider reserves the right to alter the above limitations and to place additional limits without prior notice if an account endangers the stability or the performance of the hosting server due to intensive resource usage. The additional limits may include, but are not limited to MySQL, memory and CPU usage limitations, and stopping access to directories.
Each hosting account on the Provider servers is meant to be used for one domain, as well as a number of parked domains, according to the hosting plan. Parked domains are full aliases of the main domain - they display the same site content and share the same mailboxes. Pointing parked domains to subfolders or subdomains on the account through .htaccess files or other means is not allowed.
PROXY SOFTWARE AND REDIRECTION SERVICES
We do not allow running of proxy software on our servers. Sites offering shortening URL services are not allowed as well.
DISTRIBUTION AND/OR TRANSMISSION OF OBSCENE OR INDECENT SPEECH OR MATERIALS
Violation of indecency and obscenity laws can result in criminal penalties.
ACCOUNT CONTENT OWNERSHIP
The content of the hosting account is considered to be a property of the customer. The customer retains ownership on all data that he/she uploads to the hosting account. The Provider will not use the data on the hosting account for any other purpose than for the provision of the hosting service itself. The Provider will not provide hosting account data to any third parties, unless this is required by law, or the customer has agreed upon this.
As an owner of the hosting account data, the customer is solely responsible for the content of the account, including its security. The Provider reserves its right to block access to any content that may be threatening the security of the hosting service, the data of other customers on the servers, or the Provider's reputation. The Provider reserves its right to judge as to what content is considered threatening and is a subject of this rule.
INTELLECTUAL PROPERTY RIGHTS
Materials, accessible to the customer through the Provider's services, may be subject to protection under the United States or other copyright laws, or laws protecting trademarks, trade secrets or proprietary information. Except when exclusively permitted by the owner of such rights, the customer may not use the Provider's services in a manner that would infringe, violate, dilute, or misappropriate any such rights, with respect to any material, which the customer accesses or receives through the Provider's network. If the customer uses a domain name in connection with the Provider's service, he/she may not use that domain name in violation of any third party trademark, service mark, or similar rights.
When using the Provider's services, the customer retains all intellectual property rights on their own content, trademarks, and any other data related to the site/account content. The Provider will use this content/data/trademarks only for the provision of the hosting service, unless other actions are required by law.
Customers may not use the Provider's network in an attempt to circumvent user authentication or security of any host, network, or account. This includes but is not limited to: accessing data not intended for the customer, logging into a server or account the customer is not exclusively authorized to access, password cracking, probing the security of other networks in search of weaknesses, or violation of any other organization's security policy. Customers may not attempt to interfere or deny service to any user, host or network. This includes, but is not limited to: flooding, mail bombing or other deliberate attempts to overload or crash a host or network. The Provider will fully cooperate with investigations of violations of systems or network security. This also includes cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.
The customer may not host material that is:
- threatening or obscene;
- offensive to any person or group. This includes, but is not limited to: prejudice, racism, intolerance, hatred, and harassment; expressions that are by nature libelous, defamatory, and offensive to or disrespectful of ethnic, racial, religious, or other groups;
- harmful to minors;
- likely to cause damage to reputation of third parties.
Note: Defamatory speech distributed over the Internet can result in civil liability for the defamer.
SPAM OR UNSOLICITED E-MAIL
The customer may not use the Provider's network, the Provider's equipment, or the Provider's e-mail service in connection with the transmission of spam, flames, mail bombs, or similar unsolicited e-mail messages. The customer's domain may not be referenced as originator, intermediary or reply-to address in any of the above. This prohibition fully extends to sending of unsolicited mailings from another service that in any way mentions your domain name or implicates the use of the Provider's network, the Provider's equipment, or the Provider's e-mail services. A message is considered unsolicited if it is posted in violation of a newsgroup charter, or if it is sent to a recipient without his/her prior consent. For purposes of this provision, merely making one's e-mail address accessible to the public will not constitute a request or invitation to receive messages.
In case sufficient evidence is presented about any violation of this provision, the Provider reserves the right to disable the customer's account without prior notice. For the purpose of acquiring such evidence, the Provider will use various techniques, including but not limited to: closely inspecting all spam reports sent to the Provider's anti-abuse department, searching the logs of the Provider's mail servers, and scanning the server space for popular "spamming" applications. The Provider will be the sole arbiter as to what would be considered sufficient evidence.
Any attempt to undermine, slander, libel, threaten or cause harm to the Provider's customers, employees and property, or to the company directly, is grounds for immediate termination without refund. In addition, any such attempts will be prosecuted to the fullest extent of the law.
The Provider, at its sole discretion, may change these terms and conditions at any time. By using the Provider's services, the user agrees that the Provider may: (1) revise these terms and conditions; and (2) change the services provided. Any such revision or change will be binding and effective immediately on posting of the revised terms or change to the service(s) on the Provider's web site, or on notification to the customer by e-mail. The customer agrees to periodically review the Provider's web site, including these terms, to get informed of any such revisions. If the customer does not agree with any revision, he/she may terminate the services at any time by notifying the Provider by e-mail. Notice of the customer's termination will be effective on receipt and processing by the Provider. The customer agrees that, by continuing to use the Provider's services following notice of any revision to this Agreement or change in service(s), he/she abides by any such revisions or changes.
The content available through this site is the sole property of the Provider and is protected by patent, copyright, trademark, and other intellectual property laws. Except as otherwise explicitly agreed in writing, the Provider-owned content received through this site may be downloaded, displayed, reformatted, and printed for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate the content received through this site to anyone, including but not limited to others in the same company or organization without the Provider's express prior written consent.
REFUSAL OF SERVICE
The Provider reserves the right to refuse hosting for insecure applications that could be, for instance, utilized by an attacker to gain unauthorized access to the server and/or execute applications with the privileges of the customer that has uploaded the insecure application in question. Customers are responsible for keeping their applications up-to-date, checking for security issues with the application vendor, and updating to the latest secure version that is available. In the event that an insecure application is installed on the hosting account of the customer, the Provider reserves the right to disable access to it, or, if deemed necessary, to the hosting account in its entirety. This will be with the exclusive purpose of preventing damage to the customer and to the other customers hosted on the same server, and may be done with or (in case of emergency) without prior notice.
The Provider reserves the right to impose restrictions or fully suspend any of the services provided to customers, in case the operation of these services threatens the overall security and stability of the hosting system, and/or the proper operation of other customers' accounts/services.
The Provider reserves the right at its sole discretion to refuse or cancel service. Violation of any of the Provider's Terms could result in a warning, suspension, or account termination. Submitting fake personal information can also be grounds for suspension or termination.
THE CUSTOMER AGREES THAT THE PROVIDER SHALL NOT BE LIABLE FOR ANY (1) SUSPENSION OR LOSS OF THE SERVICE(S), INCLUDING, WITHOUT LIMITATION, DOMAIN NAME REGISTRATION SERVICES AND WEB HOSTING SERVICES, (2) USE OF THE SERVICE(S), INCLUDING, WITHOUT LIMITATION DOMAIN NAME REGISTRATION SERVICES AND WEB HOSTING SERVICES, (3) INTERRUPTION OF THE PROVIDER'S SERVICES OR INTERRUPTION OF THE CUSTOMER'S BUSINESS, (4) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE PROVIDER'S WEB SITE(S) OR SERVICE(S) OR DELAYS OR ACCESS INTERRUPTIONS THE CUSTOMER EXPERIENCES IN RELATION TO THE SERVICES OFFERED BY THE PROVIDER; (5) LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND THE PROVIDER'S CONTROL (6) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (7) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF THE CUSTOMER'S ACCOUNT; OR (8) APPLICATION OF THE DISPUTE POLICIES. THE PROVIDER ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE PROVIDER'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER FOR THE DISPUTED SERVICE, BUT IN NO EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, THE PROVIDER'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Acceptable Use Policy
Acceptable Use Policy
Last Updated: December 29, 2020
This Acceptable Use Policy outlines examples of prohibited conduct in connection with our Services. Note that any capitalized terms not defined in this Acceptable Use Policy have the meanings set forth in our Terms of Service. If you have any comments or questions about this Acceptable Use Policy, feel free to contact us.
Our Services are used by millions of people to express themselves, build their brands and grow their businesses. We’re proud of the creative and inspiring ways that people use our Services, but we expect our users to use our platform responsibly. As a SmartyPants user you agree not to misuse the Services or help anyone else do so. Below are some guidelines for what you should not do with the Services.
- Abusing And Disrupting The Services
1.1. Don’t probe, scan or test the vulnerability of any system or network.
1.2. Don’t breach or otherwise bypass any security or authentication measures.
1.3. Don’t access, tamper with or use non-public areas or parts of the Services, or shared areas of the Services you haven’t been invited to access.
1.4. Don’t interfere with or disrupt any user, host or network (whether it’s SmartyPants’s or someone else’s), for example by distributing malware or overloading, flooding or mail-bombing any part of the Services.
1.5. Don’t take apart, decompile or reverse engineer any part of the Services in an effort to access things such as source code or algorithms.
1.6. Don’t access, search or create accounts for the Services by any means other than our publicly supported interfaces (for example, scraping, spidering or crawling).
1.7. Don’t take action that imposes an unreasonable load on our infrastructure or our third party providers. We reserve the right to determine what’s reasonable.
1.8. Don’t provide your password to any other person, use any other person’s username and password, or otherwise manage the Services through shared credentials.
1.9. Don’t avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological or other measure (including watermarks) used by SmartyPants or any other party (including another user) intended to protect the Services (including any Template).
1.10. Don’t remove any copyright or other proprietary notices from the Services (including any Template).
- Spamming And Phishing
2.1. Don’t use our Services to send spam, emails that violate CAN-SPAM or other laws, emails to people who have not explicitly consented (where such consent is required) or other unsolicited communications (bulk or otherwise), promotions or advertisements. Note, we reserve the right to determine what constitutes spam.
2.2. Don’t send altered, deceptive or false source-identifying information (including any misleading or incorrect names, email addresses, subject lines), including without limitation phishing or spoofing.
- Deceiving And Impersonating Others
3.1. Don’t do anything that’s false, fraudulent, inaccurate or deceiving.
3.2. Don’t impersonate another person, company or entity.
3.3. Don’t engage in misleading or unethical marketing or advertising.
4.1. Don’t use unauthorized credit cards, debit cards or other unauthorized payment devices on the Services.
4.2. Don’t promote or advertise products or services other than your own without appropriate authorization.
4.3. Don’t sell the Services unless specifically authorized to do so, or publish or use the Services on any network or system other than those provided by SmartyPants unless previously authorized by SmartyPants.
- Infringing, Misappropriating And Violating Rights
5.1. Don’t infringe or misappropriate anyone’s copyright, trademark or other intellectual property rights.
5.2. Don’t violate anyone’s privacy or publicity rights.
- Other Improper Or Illegal Conduct
6.1. Don’t threaten, harass, or abuse any individuals.
6.2. Don’t incite violence.
6.3. Don’t publish sexually explicit or obscene material.
6.4. Don’t condone or promote self-harm.
6.5. Don’t condone or promote violence against any person or group based on race, ethnicity, nationality, religion, gender, gender identity, sexual preference, age or disability.
6.6. Don’t violate any laws through the Services, including without limitation all local laws regarding online conduct and acceptable content.
If we conclude, in our discretion, that you have misused the Services, we may take action against your Account or Your Sites. We try to ensure fair outcomes, but in all cases we reserve the right to remove any content or suspend or terminate your Account or Your Sites, without any refund of any amounts paid for the Services, without liability or notice to you, at any time and for any reason (except where prohibited by applicable law). We reserve the right to enforce, or not enforce, this Acceptable Use Policy in our sole discretion.
You can report violations of these guidelines to us directly by emailing email@example.com
We may modify this Acceptable Use Policy from time to time, and will post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you in accordance with the procedures set forth in our Terms of Service.