THESE TERMS AND CONDITIONS MUST BE READ BEFORE REGISTERING WITH SMORTY AND THE USE OF SMORTY SERVICES. USING SMORTY’S SERVICES INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER WITH SMORTY.
This agreement ("Agreement") is between you (“blogger”) and Smorty. These are the Terms and Conditions of Smorty’s Service (the "Service"). Smorty offers campaign opportunities to write your opinion in your blog about advertiser provided topics with a link code ("Hyperlink") that may be placed by bloggers in one or more blogs with original content on the topic ("Posts") in exchange for a payment of money (get paid for blogging about provided campaigns). Smorty also provides banner and widget advertising by both pay-per-click and pay-per-view methods. "Blogger" or "you" means any person or entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1. Memberships. Using the Service is subject to Smorty’s approval of your membership application and your continued compliance with the Rules or such other URL as Smorty may provide from time to time. Smorty reserves the right to refuse membership to any applicant or member at any time in its sole discretion. By enrolling in the Service, you represent that you are at least 16 years of age and agree that you will participate in the Service through responsible blogging on one or more sites using the Service provided topics and Hyperlink. The same individual can not hold multiple memberships, they will be subject to immediate termination unless expressly authorized in writing by Smorty (including by electronic mail).
2. Implementation of Posts. You agree to comply with the specifications provided by Smorty from time to time to enable proper delivery, display, tracking, and reporting of Posts in connection with your Posts, including without limitation by not modifying the Hyperlink code provided to you in the advertising campaign by Smorty in any way, unless expressly authorized in writing by Smorty (including by electronic mail). All posts must be original content with a minimum of 150 words on the same page and contain the exact number of links provided in the chosen campaign. You agree to Post on reputable, fully indexed, non-banned sites with non-defamatory or improper communications while participating in the Service and posting Service related content. Once a campaign has been taken by the blogger, the blogger will have up to 24hrs to confirm the post before ownership is given to another blogger (task expired). If a post is sent back to the blogger to fix, the blogger has another 24 hours to fix the post and submit it again to their admin panel. All features of the Service are provided "as is" and your use of them shall be undertaken solely at your own risk.
3. Posts Payment. Payments in the form of money will be received for each individual, original, approved opinion post on your blog for the amount displayed when a campaign has been delivered to you via email by Smorty. Each post must contain proper use of the Hyperlink code, in each case as determined by Smorty. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to you shall be sent by Smorty within approximately seven (7) days after your post has been approved by the advertiser and Smorty. Payments will be paid via the PayPal service to your PayPal account only. You must have a valid and current PayPal account to receive payment. In the event the Agreement is terminated, Smorty shall pay your rightfully earned balance to you within approximately thirty (30) days after the end of the calendar month in which the Agreement is terminated by you (following Smorty's receipt of your written request, including by email, to terminate the Agreement) or by Smorty. In no event, however, shall Smorty make payments for any earned balance less than the minimum amount allowable by the PayPal service. Notwithstanding the foregoing, Smorty shall not be liable for any payment based on: (a) any amounts which result from invalid, improper or illegal Posts, as reasonably determined by Smorty. Smorty reserves the right to withhold payment or charge back your account due to any of the foregoing or any breach of this Agreement by you, pending Smorty's reasonable investigation, or in the event that an advertiser whose Hyperlink code is used in connection with your Posts defaults on payment for such Posts to Smorty. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your membership in the Service. Smorty may change its pricing and/or payment structure at any time. If you dispute any payment made under the Service, you must notify Smorty in writing within thirty (30) days of any such payment; failure to so notify Smorty shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Smorty. No other measurements or statistics of any kind shall be accepted by Smorty or have any effect under this Agreement. The payments made under this Agreement are for use by you only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by Smorty (including by electronic mail).
4. Pay-Per-Click and Pay-Per-View payments. Payments in the form of money will be received for each individual IP address view or non fraudulent click from your visitors to available banner or widget advertising through Smorty services. Each visitor must be natural and non fraudulent. Payments to you shall be sent by Smorty within approximately thirty (30) days from your visitor being registered as a valid earning through the Smorty services. Payments will be paid via the PayPal service to your PayPal account only. You must have a valid and current PayPal account to receive payment. In the event the Agreement is terminated, Smorty shall pay your rightfully earned balance to you within approximately thirty (30) days after the end of the calendar month in which the Agreement is terminated by you (following Smorty's receipt of your written request, including by email, to terminate the Agreement) or by Smorty. In no event, however, shall Smorty make payments for any earned balance less than the minimum amount allowable by the PayPal service. Notwithstanding the foregoing, Smorty shall not be liable for any payment based on: any amounts which result from invalid, improper or illegal clicks, as reasonably determined by Smorty. including but not limited to email marketing using tracking code, listing on an unapproved website or buying traffic. Smorty reserves the right to withhold payment or charge back your account due to any of the foregoing or any breach of this Agreement by you, pending Smorty's reasonable investigation. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your membership in the Service. Smorty may change its pricing and/or payment structure at any time. If you dispute any payment made under the Service, you must notify Smorty in writing within thirty (30) days of any such payment; failure to so notify Smorty shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Smorty. No other measurements or statistics of any kind shall be accepted by Smorty or have any effect under this Agreement. The payments made under this Agreement are for use by you only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by Smorty (including by electronic mail).
5. Blogger Responsibilities. You are personally responsible for blog posts and operations, including all content and materials, maintenance and operation thereof, the proper implementation of Smorty's specifications, and adherence to the terms of this Agreement, including compliance with the Service Policies. Smorty reserves the right to investigate, at its own discretion, any activity that may violate this Agreement. Smorty is not responsible for anything related to your Posts or blog, including without limitation the receipt of queries or responses from end users of your blog(s) or the transmission of data between your blog(s) and Smorty. In addition, Smorty shall not be obligated to provide notice to you in the event that any Link is not being linked properly to your blog(s) or any blog to which you Post.
6. Communications. You agree to communicate directly with Smorty, and not to any advertiser, with regard to any aspect of the Service which you desire to discuss. You can contact Smorty by the Contact Us link on www.smorty.com.
7. Banned Uses. You must not directly or indirectly encourage: (i) the use defamatory language, pornographic pictures or references, curse words, hate words or other language or posts which would be deemed illegal, immoral or outside of general community standards, (ii) use any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated language, the use of robots or other automated posting tools and/or computer generated blogging to Post; (iii) use identical or nearly identical Posts on the same or different blogs; (iv) act in any way that violates any Service Policies posted on the Smorty Website, as may be revised from time to time, or any other agreement between you and Smorty, or engage in any action or practice that reflects poorly on Smorty or otherwise disparages or devalues Smorty’s reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against you, including an immediate suspension of your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. Smorty shall have no obligation to provide payment to you for those or any of your Posts.
8. Cancellation / Termination. This agreement will commence on the date you or a representative on your permission 'checks' the "I ACCEPT" box to agree to the terms and conditions and shall continue thereafter until your account is terminated by you or by Smorty.
a) Termination by Smorty. Smorty shall have the right, upon notice to blogger, to terminate all or part of this Agreement at any time with or without cause. Reasons include but are not limited to (a) Blogger materially breaches any term or condition this Agreement; or (b) Blogger (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
Upon termination of membership of any Site in the Service or termination of this Agreement for any reason, all Sections of this agreement shall survive termination.
b) Termination by blogger. You may cancel at any time by sending written notice of your desire to cancel your membership to Smorty (including email). All terminations by the blogger must be replied to by Smorty administration. Once the blogger has rightfully earned their payments according to these terms with Smorty, all payments will be paid within approximately thirty (30) days after the end of the calendar month in which the Agreement is terminated. This Agreement will be deemed terminated within fifteen (15) business days of Smorty's receipt of your notice and only if replied to.
9. Confidentiality. You agree not to disclose Smorty Confidential Information without Smorty's prior written consent. "Smorty Confidential Information" includes without limitation: (a) all Smorty software, technology, programming, specifications, materials, guidelines and documentation relating to the Service; (b) statistics relating to usage or results of the Service provided to you by Smorty; and (c) any other information designated in writing by Smorty as "Confidential" or an equivalent designation. However, you may accurately disclose the amount of Smorty’s gross payments to you pursuant to the Service. Smorty Confidential Information does not include information that has become publicly known through no breach by you or Smorty, or information that has been (i) independently developed without access to Smorty Confidential Information, as evidenced in writing; (ii) rightfully received by you from a third party; or (iii) required to be disclosed by law or by a governmental authority.
10. No Guarantee. Smorty makes no guarantee regarding the opportunities, the amount of any payment to be made to you under this Agreement, or that any product provided will be in usable condition.
11. No Warranty. SMORTY MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING, CODE, POSTS, BLOGS, OR OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
12. Limitations of Liability. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE SERVICE, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) SMORTY'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY SMORTY TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
13. Publicity. You agree that Smorty may use your name and blog site name in presentations, marketing materials, customer lists, financial reports and Website listings of customers.
14. Warranties and Representations. You warrant and represent that (a) all of the information provided by you to Smorty to enroll in the Service is correct and current; (b) you are the owner of each of your blogs or that you are legally authorized to Post to the blogs you will Post to for the purposes of this Agreement and the Service; (c) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder; and (d) you have complied, and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in your performance of any acts hereunder. You further represent and warrant that each blog and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
15. Your Obligation to Indemnify. You agree to indemnify, defend and hold Smorty, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g., relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from your use of the Service, your Post(s), and/or your breach of any term or condition of this Agreement.
16. Smorty Rights. You acknowledge that Smorty owns all right, title and interest in and to the Service (including Smorty's tracking technology and Brand Features, and excluding items licensed by Smorty from third parties), including without limitation all Intellectual Property Rights (as defined below), and that you will not acquire any right, title, or interest in or to the Service except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Smorty services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Service or proprietary information related thereto. You will not remove, obscure, or alter Smorty's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Smorty services, software, or documentation (including without limitation the display of Smorty’s Brand Features with Posts and Code, as applicable). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
17. Software License. Smorty hereby grants Merchant a non-exclusive, non-transferable licence to use the Software in object code form only on a server controlled by Smorty.
18. Miscellaneous. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or after your continued membership in the Service after such terms have been updated by Smorty. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Smorty. Notwithstanding the foregoing, Smorty may assign this Agreement to any affiliate at any time without notice. The relationship between Smorty and you is not one of a legal partnership relationship, but is one of independent contractors.
19. Changes to this Agreement
Ashop Commerce will occasionally update this agreement. When we do, we will also revise the "last updated" date at the top of the Agreement statement.
This agreement constitutes the entire agreement between the parties as to its subject matter to the exclusion of any prior agreement whether written or oral express or in any way implied.
If any provision of this agreement is held to be invalid or unenforceable for any reason it shall be severable and shall not affect the remaining provisions of this agreement.
References to any party to this agreement shall be deemed to be references to or include as appropriate there respective successors and permitted assigns.
Copyright Notice Copyright © 2004 - 2007 Smorty. All rights reserved.
This agreement ("Agreement") is between you (“blogger”) and Smorty. These are the Terms and Conditions of Smorty’s Service (the "Service"). Smorty offers campaign opportunities to write your opinion in your blog about advertiser provided topics with a link code ("Hyperlink") that may be placed by bloggers in one or more blogs with original content on the topic ("Posts") in exchange for a payment of money (get paid for blogging about provided campaigns). Smorty also provides banner and widget advertising by both pay-per-click and pay-per-view methods. "Blogger" or "you" means any person or entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1. Memberships. Using the Service is subject to Smorty’s approval of your membership application and your continued compliance with the Rules or such other URL as Smorty may provide from time to time. Smorty reserves the right to refuse membership to any applicant or member at any time in its sole discretion. By enrolling in the Service, you represent that you are at least 16 years of age and agree that you will participate in the Service through responsible blogging on one or more sites using the Service provided topics and Hyperlink. The same individual can not hold multiple memberships, they will be subject to immediate termination unless expressly authorized in writing by Smorty (including by electronic mail).
2. Implementation of Posts. You agree to comply with the specifications provided by Smorty from time to time to enable proper delivery, display, tracking, and reporting of Posts in connection with your Posts, including without limitation by not modifying the Hyperlink code provided to you in the advertising campaign by Smorty in any way, unless expressly authorized in writing by Smorty (including by electronic mail). All posts must be original content with a minimum of 150 words on the same page and contain the exact number of links provided in the chosen campaign. You agree to Post on reputable, fully indexed, non-banned sites with non-defamatory or improper communications while participating in the Service and posting Service related content. Once a campaign has been taken by the blogger, the blogger will have up to 24hrs to confirm the post before ownership is given to another blogger (task expired). If a post is sent back to the blogger to fix, the blogger has another 24 hours to fix the post and submit it again to their admin panel. All features of the Service are provided "as is" and your use of them shall be undertaken solely at your own risk.
3. Posts Payment. Payments in the form of money will be received for each individual, original, approved opinion post on your blog for the amount displayed when a campaign has been delivered to you via email by Smorty. Each post must contain proper use of the Hyperlink code, in each case as determined by Smorty. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to you shall be sent by Smorty within approximately seven (7) days after your post has been approved by the advertiser and Smorty. Payments will be paid via the PayPal service to your PayPal account only. You must have a valid and current PayPal account to receive payment. In the event the Agreement is terminated, Smorty shall pay your rightfully earned balance to you within approximately thirty (30) days after the end of the calendar month in which the Agreement is terminated by you (following Smorty's receipt of your written request, including by email, to terminate the Agreement) or by Smorty. In no event, however, shall Smorty make payments for any earned balance less than the minimum amount allowable by the PayPal service. Notwithstanding the foregoing, Smorty shall not be liable for any payment based on: (a) any amounts which result from invalid, improper or illegal Posts, as reasonably determined by Smorty. Smorty reserves the right to withhold payment or charge back your account due to any of the foregoing or any breach of this Agreement by you, pending Smorty's reasonable investigation, or in the event that an advertiser whose Hyperlink code is used in connection with your Posts defaults on payment for such Posts to Smorty. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your membership in the Service. Smorty may change its pricing and/or payment structure at any time. If you dispute any payment made under the Service, you must notify Smorty in writing within thirty (30) days of any such payment; failure to so notify Smorty shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Smorty. No other measurements or statistics of any kind shall be accepted by Smorty or have any effect under this Agreement. The payments made under this Agreement are for use by you only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by Smorty (including by electronic mail).
4. Pay-Per-Click and Pay-Per-View payments. Payments in the form of money will be received for each individual IP address view or non fraudulent click from your visitors to available banner or widget advertising through Smorty services. Each visitor must be natural and non fraudulent. Payments to you shall be sent by Smorty within approximately thirty (30) days from your visitor being registered as a valid earning through the Smorty services. Payments will be paid via the PayPal service to your PayPal account only. You must have a valid and current PayPal account to receive payment. In the event the Agreement is terminated, Smorty shall pay your rightfully earned balance to you within approximately thirty (30) days after the end of the calendar month in which the Agreement is terminated by you (following Smorty's receipt of your written request, including by email, to terminate the Agreement) or by Smorty. In no event, however, shall Smorty make payments for any earned balance less than the minimum amount allowable by the PayPal service. Notwithstanding the foregoing, Smorty shall not be liable for any payment based on: any amounts which result from invalid, improper or illegal clicks, as reasonably determined by Smorty. including but not limited to email marketing using tracking code, listing on an unapproved website or buying traffic. Smorty reserves the right to withhold payment or charge back your account due to any of the foregoing or any breach of this Agreement by you, pending Smorty's reasonable investigation. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your membership in the Service. Smorty may change its pricing and/or payment structure at any time. If you dispute any payment made under the Service, you must notify Smorty in writing within thirty (30) days of any such payment; failure to so notify Smorty shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Smorty. No other measurements or statistics of any kind shall be accepted by Smorty or have any effect under this Agreement. The payments made under this Agreement are for use by you only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by Smorty (including by electronic mail).
5. Blogger Responsibilities. You are personally responsible for blog posts and operations, including all content and materials, maintenance and operation thereof, the proper implementation of Smorty's specifications, and adherence to the terms of this Agreement, including compliance with the Service Policies. Smorty reserves the right to investigate, at its own discretion, any activity that may violate this Agreement. Smorty is not responsible for anything related to your Posts or blog, including without limitation the receipt of queries or responses from end users of your blog(s) or the transmission of data between your blog(s) and Smorty. In addition, Smorty shall not be obligated to provide notice to you in the event that any Link is not being linked properly to your blog(s) or any blog to which you Post.
6. Communications. You agree to communicate directly with Smorty, and not to any advertiser, with regard to any aspect of the Service which you desire to discuss. You can contact Smorty by the Contact Us link on www.smorty.com.
7. Banned Uses. You must not directly or indirectly encourage: (i) the use defamatory language, pornographic pictures or references, curse words, hate words or other language or posts which would be deemed illegal, immoral or outside of general community standards, (ii) use any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated language, the use of robots or other automated posting tools and/or computer generated blogging to Post; (iii) use identical or nearly identical Posts on the same or different blogs; (iv) act in any way that violates any Service Policies posted on the Smorty Website, as may be revised from time to time, or any other agreement between you and Smorty, or engage in any action or practice that reflects poorly on Smorty or otherwise disparages or devalues Smorty’s reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against you, including an immediate suspension of your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. Smorty shall have no obligation to provide payment to you for those or any of your Posts.
8. Cancellation / Termination. This agreement will commence on the date you or a representative on your permission 'checks' the "I ACCEPT" box to agree to the terms and conditions and shall continue thereafter until your account is terminated by you or by Smorty.
a) Termination by Smorty. Smorty shall have the right, upon notice to blogger, to terminate all or part of this Agreement at any time with or without cause. Reasons include but are not limited to (a) Blogger materially breaches any term or condition this Agreement; or (b) Blogger (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
Upon termination of membership of any Site in the Service or termination of this Agreement for any reason, all Sections of this agreement shall survive termination.
b) Termination by blogger. You may cancel at any time by sending written notice of your desire to cancel your membership to Smorty (including email). All terminations by the blogger must be replied to by Smorty administration. Once the blogger has rightfully earned their payments according to these terms with Smorty, all payments will be paid within approximately thirty (30) days after the end of the calendar month in which the Agreement is terminated. This Agreement will be deemed terminated within fifteen (15) business days of Smorty's receipt of your notice and only if replied to.
9. Confidentiality. You agree not to disclose Smorty Confidential Information without Smorty's prior written consent. "Smorty Confidential Information" includes without limitation: (a) all Smorty software, technology, programming, specifications, materials, guidelines and documentation relating to the Service; (b) statistics relating to usage or results of the Service provided to you by Smorty; and (c) any other information designated in writing by Smorty as "Confidential" or an equivalent designation. However, you may accurately disclose the amount of Smorty’s gross payments to you pursuant to the Service. Smorty Confidential Information does not include information that has become publicly known through no breach by you or Smorty, or information that has been (i) independently developed without access to Smorty Confidential Information, as evidenced in writing; (ii) rightfully received by you from a third party; or (iii) required to be disclosed by law or by a governmental authority.
10. No Guarantee. Smorty makes no guarantee regarding the opportunities, the amount of any payment to be made to you under this Agreement, or that any product provided will be in usable condition.
11. No Warranty. SMORTY MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING, CODE, POSTS, BLOGS, OR OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
12. Limitations of Liability. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE SERVICE, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) SMORTY'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY SMORTY TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
13. Publicity. You agree that Smorty may use your name and blog site name in presentations, marketing materials, customer lists, financial reports and Website listings of customers.
14. Warranties and Representations. You warrant and represent that (a) all of the information provided by you to Smorty to enroll in the Service is correct and current; (b) you are the owner of each of your blogs or that you are legally authorized to Post to the blogs you will Post to for the purposes of this Agreement and the Service; (c) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder; and (d) you have complied, and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in your performance of any acts hereunder. You further represent and warrant that each blog and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
15. Your Obligation to Indemnify. You agree to indemnify, defend and hold Smorty, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g., relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from your use of the Service, your Post(s), and/or your breach of any term or condition of this Agreement.
16. Smorty Rights. You acknowledge that Smorty owns all right, title and interest in and to the Service (including Smorty's tracking technology and Brand Features, and excluding items licensed by Smorty from third parties), including without limitation all Intellectual Property Rights (as defined below), and that you will not acquire any right, title, or interest in or to the Service except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Smorty services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Service or proprietary information related thereto. You will not remove, obscure, or alter Smorty's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Smorty services, software, or documentation (including without limitation the display of Smorty’s Brand Features with Posts and Code, as applicable). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
17. Software License. Smorty hereby grants Merchant a non-exclusive, non-transferable licence to use the Software in object code form only on a server controlled by Smorty.
18. Miscellaneous. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or after your continued membership in the Service after such terms have been updated by Smorty. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Smorty. Notwithstanding the foregoing, Smorty may assign this Agreement to any affiliate at any time without notice. The relationship between Smorty and you is not one of a legal partnership relationship, but is one of independent contractors.
19. Changes to this Agreement
Ashop Commerce will occasionally update this agreement. When we do, we will also revise the "last updated" date at the top of the Agreement statement.
This agreement constitutes the entire agreement between the parties as to its subject matter to the exclusion of any prior agreement whether written or oral express or in any way implied.
If any provision of this agreement is held to be invalid or unenforceable for any reason it shall be severable and shall not affect the remaining provisions of this agreement.
References to any party to this agreement shall be deemed to be references to or include as appropriate there respective successors and permitted assigns.
Copyright Notice Copyright © 2004 - 2007 Smorty. All rights reserved.
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