Terms Of Service
Effective Date: Feb 11th, 2013
The Short Version (TLDR)
Services that are offered by sellers on TheSmartWare are called "Services". Services on TheSmartWare are offered for the set price provided by the seller. Only registered users can buy and sell on TheSmartWare. Registration is free. You may not offer or accept payments using any method other than placing an order through TheSmartWare.com. Services should be ordered using the 'Order Now' button. Buyers are granted all rights for the delivered work, unless otherwise specified by the seller in the service description.
Refunds only given for undelivered work.
Fraud is bad, your account will be banned for doing it.
The Long Version
1. DESCRIPTION OF SERVICE; MINIMUM AGE REQUIREMENT
a. Description of Service. TheSmartWare.com is a marketplace for SEO professionals to create Services, selling their services to those in need.
b. Age Requirement. You must be at least 14 years old to use the Service.
2. MODIFICATIONS TO TERMS
b. Your Obligation to Stay Current. It is critical that you keep your email contact information correct and updated with TheSmartWare at all times. In addition, we encourage you to check back regularly to review these Terms at least once every 30 days.
3. MODIFICATIONS TO SERVICE. We reserve the right to modify or discontinue, and restrict or block access to, the Service without notice to you. We may modify or remove any Content from the Service at any time without notice to you, including removal of Content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. We are not liable for any such modification, suspension, discontinuance or removal, and any such action by us will not affect TheSmartWare's license to your Content as stated in Section 5 below.
4. POSTING CONTENT ON THE SERVICE; REPRESENTATIONS AND WARRANTIES
a. Content Protected by Intellectual Property Rights. Any content available through the Service, including applications, software, text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information and other works of authorship (collectively, "Content") is protected by the intellectual property rights of TheSmartWare or its licensors.
b. Your Warranties Regarding Your Content. By displaying or publishing ("posting") any Content on the Service, you warrant and represent the following:
1. you own all rights in your Content or, alternatively, you have sufficient rights in your Content to grant to TheSmartWare the rights described in these Terms;
2. you will pay all license fees, clearance fees, and other financial obligations of any kind, arising from any use of your Content;
3. you are the individual pictured, depicted, and/or heard in your Content or you have obtained permission from each person (including consent from parents or guardians for anyone under the age of eighteen (18)) who appears and/or is heard in your Content to grant the rights to TheSmartWare described in these Terms; and
4. your Content is not defamatory, does not infringe the intellectual property rights, privacy, rights to publicity or any other legal or moral rights of any third party.
c. Establishing an Account to Post Content. To post Content on the Site, you must first complete the Site registration process to create an account with a user name and password (the "Account"). You may not share your password with anyone unless you are a minor, in which case you may share your password with your parents or other legal guardians. You must always provide accurate current and complete information to TheSmartWare for the Service. You must update such information in a timely manner to maintain its accuracy and completeness. Any use of the Service through your Account will be deemed as being used by you. TheSmartWare is entitled to rely on the contact and other information that is supplied to us through your Account. Your Account is non-transferable and non-assignable.
5. OWNERSHIP OF RIGHTS; LICENSE RIGHTS; USER SUBMISSIONS
a. Ownership of Your Content. You retain ownership of your rights in any Content you post to the Service, subject to the non-exclusive rights that you grant to us as described in these Terms.
b. Your License to TheSmartWare.
i. Subject to your right to terminate your license to us as described in Section 5(C), you hereby grant TheSmartWare an irrevocable, perpetual, worldwide, royalty-free, freely transferable, freely sub-licensable (through unlimited levels of sublicense), non-exclusive license to use, reproduce, modify, transmit, distribute, publicly perform and display (including in each case by means of a digital audio and video transmission), advertise in, on, and around, and create derivative works of the Content you submit or make available for inclusion on or through the Service, and to incorporate such Content into other works in any form, media, or technology now known or later developed.
ii. You also hereby waive any moral rights you may have under the laws of any jurisdiction in Content you submit or make available on or through the Service. We may (but are not obligated to) display your Content, including your username and your actual name (according to the preferences you select).
c. C. Your Right to Terminate the License. For Content consisting of photos, graphics, audio or video (but not, for clarity, any Content solely in the form of text) that you have submitted or made available for inclusion on or through the Service, you may remove or modify such Content from the Service at any time. Your removal of such Content from the Service will terminate our license to such Content. But if prior to such removal or modification, TheSmartWare has distributed, or developed specific plans to distribute, any electronic, printed, or other materials containing such Content (e.g., in advertising, promotion or otherwise), then TheSmartWare has a limited right to continue to distribute those materials.
d. User Contact Submissions. When you submit ideas, suggestions, documents, or proposals (collectively, "Submissions") to TheSmartWare through our "Feedback" web page located at http://www.TheSmartWare.com/contactus.html&http://www.TheSmartWare.com/contactus.html , you represent, warrant, and agree that: (a) your Submissions do not include confidential or proprietary information; (b) if we so choose, TheSmartWare may use and disclose your Submissions in any way; and (c) TheSmartWare has no obligation to pay or reimburse you for your Submissions or our use of your Submissions.
6. PROHIBITED CONTENT. You must not post to the Service any Content that, as reasonably determined by TheSmartWare, is or appears to be the following:
a. untrue, misleading, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive to another person's privacy or protected data, hateful, or racially or otherwise objectionable;
b. infringing upon a third party's intellectual property rights, including any patent, trademark, trade secret, copyright, right of publicity, including any Content that is the subject of any claim of infringement;
c. of a type that you do not have a right to transmit under any law or under contractual or fiduciary relationships, such as proprietary and confidential information;
d. unsolicited, undisclosed or unauthorized advertising;
e. software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
f. data or information obtained through access that was not authorized by the owner, or that you are not authorized to post; or
g. in violation of any applicable local, state, national or international law (including export laws).
7. PROHIBITED CONDUCT; LIQUIDATED DAMAGES FOR SPAM.
a. Prohibited Conduct. You must not do, or attempt to do, any of the following, as reasonably determined by TheSmartWare, subject to applicable law:
1. access or use the Service in any way that is not in compliance with any applicable local, state, national or international law (including export laws), contracts, intellectual property rights or constitutes the commission of a tort, or for any purpose that is harmful or unintended (by us), or other than in full compliance with these Terms;
2. access, tamper with, or use services or areas of the Service that you are not authorized to access;
3. alter information on or obtained from the Service;
4. tamper with postings, registration information, profiles, submissions or Content belonging to TheSmartWare or other users of TheSmartWare;
5. use any robot, spider, scraper or other automated means or interface not provided by us to access the Service or extract data or gather or use information, such as email addresses, available from the Service or transmit any unsolicited advertising, "junk mail," "spam," or "chain letters";
6. frame any part of the Service, or link to the Service, or otherwise make it look like you have a relationship to us or that we have endorsed you or your Content for any purpose except as expressly permitted in writing by TheSmartWare;
7. impersonate or misrepresent your affiliation with any person or entity;
8. reverse engineer any licensed software, application, games or any other aspect of the Service or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Service;
9. send to or otherwise impact us or the Service (or anything or anyone else) with harmful, illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or other code that could adversely impact the Service or any recipient; or
10. take any action which might impose a significant burden (as determined by us) on the Service's infrastructure or computer systems, or otherwise interfere with the ordinary operation of the Service.
b. Liquidated Damages. IF YOU SEND UNSOLICITED COMMERCIAL EMAIL OR ADVERTISING, BULK EMAIL, SPAM, OR CHAIN LETTERS (COLLECTIVELY, "UNSOLICITED EMAIL OR OTHER COMMUNICATION") THROUGH THE SERVICE, YOU ACKNOWLEDGE THAT YOU WILL HAVE CAUSED SUBSTANTIAL HARM TO TheSmartWare, BUT THAT THE AMOUNT OF THE HARM WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN. AS A REASONABLE ESTIMATION OF SUCH HARM, YOU WILL PAY LICENSOR $40 FOR EACH SUCH UNSOLICITED EMAIL OR OTHER COMMUNICATION.
8. MONITORING OF SERVICE CONTENT; RESOLUTION OF USER DISPUTES
a. No Duty to Monitor. We are under no obligation to restrict or monitor the Service or any Content in any way. TheSmartWare DOES NOT REGULARLY MONITOR THE ACCURACY OR RELIABILITY OF CONTENT. However, we reserve the right to modify or remove any Content at any time. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including other users, are those of the respective author(s) and not of TheSmartWare. TheSmartWare neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Service.
b. Right to Resolve Disputes. TheSmartWare has the right, but not the obligation to resolve disputes between users relating to the Service and TheSmartWare's resolution of a particular dispute does not create an obligation to resolve any other dispute. TheSmartWare's resolution of any dispute is final with respect to the Service.
9. PROTECTION OF CONTENT.
a. License by TheSmartWare to You. You must respect the intellectual property laws protecting our Service. TheSmartWare grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, under the rights TheSmartWare has in the Content, to privately display and perform the Content on your computer for your own personal, noncommercial purposes.
b. Reservation of Rights. On its own behalf and the behalf of its licensors, TheSmartWare reserves all rights in the Content, including any software, not expressly granted in this Section 9. TheSmartWare does not in any way grant any other rights to you. Except as expressly stated in this Section 9, you may not reproduce, distribute, modify, publicly perform or display, or prepare derivative works of any Content, including any software, without prior written consent from TheSmartWare or other third-party owner of the rights in that Content (if any).
11. TERMINATION OR CANCELLATION.
a. Right to Terminate. We may, at any time, without notice to you, terminate your access to the Service, and your Account, or block your access to the Service if:
1. we believe in our sole discretion that you may have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, person, or property of TheSmartWare, our users, or any other person;
2. requested by law enforcement or other government agencies; or
3. your Account has extended periods of inactivity.
b. Notice of Termination. If applicable law requires us to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Site or by sending a communication to any address (email or otherwise) that we have for you in our records.
12. DEALINGS WITH MERCHANTS; LINKS
b. Transactions with Third Parties. Your transactions and other dealings with third party merchants or advertisers that are found on or through the Service, including "click to purchase," "co-registration," and other similar programs, including payment and delivery of related goods or services, are solely between you and such merchant or advertiser.
13. INDEMNIFICATION. You agree to hold TheSmartWare, and their subsidiaries, affiliates, officers, directors, employees, agents, attorneys, and suppliers, and each of their respective successors and assigns (collectively, the "Indemnified Persons"), harmless from, and indemnify them for, all damages, costs, expenses and other liabilities, including reasonable attorneys' fees and expenses, relating to any claim arising out of or related to: (i) your access to and use of the games, software, and other aspects of the Service and the Content; (ii) your violation of these Terms, and any applicable law or the rights of another person or party; (iii) any dispute you have with any user of the Service and any dispute you have related to any merchant or advertising found on or through the Service; (iv) TheSmartWare's resolution (if any) of any dispute you have with any user of the Service; (v) your improper authorization for TheSmartWare to collect, use or disclose any Content provided by you; and (vi) any disclosures made with your permission.
14. DISCLAIMER OF WARRANTIES. TheSmartWare PROVIDES THE SERVICE "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY LAW, TheSmartWare MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR THE INFORMATION, GAMES, SOFTWARE, OR CONTENT INCLUDED IN THE SERVICE. TheSmartWare MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TheSmartWare EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE URGE YOU TO KEEP BACKUP COPIES OF YOUR PERSONAL CONTENT, IF ANY, THAT YOU MAINTAIN ON OR USE WITH THE SERVICE. IF YOUR USE OF THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING PROPERTY, MATERIAL, EQUIPMENT OR DATA, WE ARE NOT RESPONSIBLE FOR ANY RESULTING COSTS OR DAMAGES.
15. EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE INDEMNIFIED PERSONS ARE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, STATUTORY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF GOODWILL OR ANY OTHER LOSSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF THE INDEMNIFIED PERSONS EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO US.
16. COPYRIGHT INFRINGEMENT TheSmartWare respects the intellectual property rights of others and requests that users of the Service do the same. If you believe that your work is being used on the Service in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:
a. the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf;
b. identification of the copyrighted work that you claim has been infringed;
c. identification of the material that is claimed to be infringing and information reasonably sufficient to permit TheSmartWare to locate the material (for example, by providing a URL to the material);
d. your name, address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
It is our policy to terminate in appropriate circumstances any Account or user for repeated infringement of intellectual property rights, including copyrights, and we also reserve the right to terminate an Account or user for even one instance of infringement.
TheSmartWare may access, preserve and disclose to third parties any of your information or data (including personally identifiable information and private communications) related to a written complaint of copyright infringement if we believe in our sole discretion that such access, preservation, or disclosure is necessary or useful to respond or otherwise address such complaint.
17. CUSTOMER SUPPORT. We have no obligation to provide you with customer support of any kind. However, we may provide you with customer support from time to time, at our sole discretion, if you have created an Account and you submit your customer support questions using your Account.
18. NOTICES AND CONTACT INFORMATION. Except as otherwise provided in these Terms, TheSmartWare will give you any notices by posting them on the Site. Since notice of any material change to the Terms will be posted to the Site for at least 30 days, we encourage you to visit the Site at least that often. You also authorize TheSmartWare to send notices (including notice of subpoenas or other legal process, if any) via electronic mail to the email address that we have on record for you. You must check the Site for notices, and you will be considered to have received a notice when it is made available to you by posting on the Site or when sent by TheSmartWare via electronic mail, whether or not received by you. TheSmartWare may provide notice to any email or other address that you provide to us.
19. TERMS OF PAYMENT
All services must be paid through PayPal, Payee, Alertpay/Payza, or TheSmartWare balance at the time of ordering. TheSmartWare holds the payment in escrow and pays it to the Seller after the Buyer has accepted the service. TheSmartWare collects a 20% service fee on all transactions.
Users are not permitted to offer or accept payments using any method other than through the TheSmartWare system. Services should be ordered using the "Order Now" button.
20. ORDER PROCEDURE
After payment has cleared, the Seller will be notified about the service and start working. Buyer will be notified of order status changes by email. After Buyer accepts service, the payment will be credited to the Seller’s account. Users are not permitted to offer or accept to communicate with other TheSmartWare users outside of the TheSmartWare messaging system. Doing so, will get the account blocked permanently.
21. LATE DELIVERY
If a Seller is late and has provided no communication, we encourage buyers to cancel the order as soon as possible. An order can be cancelled at any time by the buyer or seller.
22. MUTUAL ORDER CANCELLATION
Both, Buyer and Seller may at any time mutually cancel the order without a negative effect on the seller’s rating. Money from cancellations will be refunded to the Buyer´s TheSmartWare account balance.
23. DELIVERING ORDERS
TheSmartWare shall not be held reliable for quality of services delivered. Buyers must choose carefully who they order from and should always check rating and comments from other users. All disputes are to be solved between the Buyer and the Seller directly: if a Buyer is unhappy with an order, he/she should reject the delivered work and insist on the service delivery as described in the service description. Buyer should also leave a negative rating.
We encourage our buyers and sellers to resolve issues between themselves. If for any reason this process fails, you can contact us at support@TheSmartWare.com If necessary, refunds will be deposited into the Buyer´s TheSmartWare account balance.
25. ADDITIONAL TERMS
a. Agreement to Conduct Transactions Electronically. All of your transactions with or through the Service may, at our option, be conducted electronically from start to finish. If we decide to proceed non-electronically, those services will still be governed by the remainder of these Terms unless you enter into different terms on a form provided by us. If the law allows you to withdraw this consent or if we are ever required to deal with you non-electronically, we reserve the right to charge or increase fees and you agree to print or make an electronic copy of the Terms and any other contract or disclosure that we are required to provide to you.
b. Compliance with Laws. You are responsible for compliance with applicable local laws. Access to the Service Content by certain persons or in certain countries may not be legal.
c. No Agency; No Third Party Beneficiary. These Terms do not create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship. Except for the Indemnified Persons, there are no third party beneficiaries of these Terms.
d. Severance. If any part of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full effect, provided that the allocation of risks described in these Terms is given effect to the fullest extent possible.
e. Assignment. These Terms are personal to you and you may not transfer, assign or delegate them to anyone without the express written permission of TheSmartWare. Any attempt by you to assign, transfer or delegate these Terms without the express written permission of TheSmartWare will be null and void. TheSmartWare has the right to transfer, assign and delegate these Terms to one or more third parties without your permission.
f. Jurisdiction; Choice of Law; Export Limitations. This Service is controlled by us from our offices in the United States of America and is directed to U.S. users. If you access the Service from locations outside the U.S., you do so at your own risk and you are responsible for compliance with applicable local laws. You may not use or export anything from the Service in violation of U.S. export laws and regulations or the Terms. These Terms and all performances and claims of every nature between us are governed by the laws of the State of North Carolina, U.S.A., without regard to any conflicts of laws principles that would result in the application of the law of a different jurisdiction. You and TheSmartWare submit to the exclusive personal jurisdiction and venue of the state and federal courts located within Los Angeles County, Washington.
g. Limitations on Actions. Any action concerning any dispute with respect to the Service must be commenced within one year after the cause of the dispute arises, or the cause of action is barred.
h. Interpretation. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect. As used in these Terms, the words "include" and "including" are meant to be illustrative and not exhaustive.
j. No Waiver. The failure of any party to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or that party's right to act with respect to subsequent or similar breaches. We suggest that you print out a copy of these Terms for your records.
26. Further Information
If you have a complaint, you may contact us at Ionicware Legal Department, 609 Shepherd St, Hendersonville 28792, U.S.A.
27. LEGAL NOTICES.
a. NOTICE OF AVAILABILITY OF FILTERING SOFTWARE
All users are hereby informed by the provider of this interactive computer service that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. A report detailing some of those protections can be found at http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/index.html (Childrens Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies).
b. NOTICE: NO HARVESTING OR DICTIONARY ATTACKS ALLOWED
YOU MAY VIOLATE FEDERAL LAW IF YOU: (1) INITIATE THE TRANSMISSION TO TheSmartWare COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. "CAN-SPAM ACT OF 2003") THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (2) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OR SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.
c. NOTICE RE TRADEMARKS
The trademarks TheSmartWare, and all other trademarks listed below or used in the Service are owned or used under license by TheSmartWare and its affiliated organizations. The names of third parties and their products mentioned may be their trademarks. You may not use any of the above or other trademarks displayed on the Service or in any Service content. All rights are reserved.
28. Payoneer Cards
Although we allow members 14 years old and older, in order to obtain a Payoneer Card you must be at least 18 years old.
29. Refund Policy
Refunds are only given if work has not been delivered by the seller. This means the seller is not responding to you nor has made any attempt to deliver your ordered work.
Refunds will not be given for disputes (work delivered but rejected), balance purchases, or for any other reason except undelivered work. Funds will be returned to your TheSmartWare balance for future balance purchases.
Disputes against TheSmartWare will cause your account to be put on hold. Accounts on hold will no longer be able to buy or sell using TheSmartWare.
30. Social Services and Completed Services
We do not guarantee or validate any services (specifically social services). If you accept an order, whether negative or positive, you have signed off on the order and we can no longer offer a refund.
If an order has automatically completed, you may submit a ticket for review and we may re-open the order so that you may dispute the services rendered with the seller. This is at our sole discretion.
31. Fraudulent Buyers
We try to protect sellers from fraudulent buyers using a variety of fraud detection methods. Some fraud still occurs. When a fraudulent buyer issues a chargeback, unauthorized charge, bank reclaim or any other method which removes their funds from our account, we can no longer issue payments to the seller. The order is cancelled and an email notice will be sent to the seller regarding the reason of cancellation. We do not recompensate sellers for time and/or money involved, especially those that outsource to other parties.
Fraudulent Buyers will be banned without warning or question. Any attempt to reclaim funds without requesting a refund directly via TheSmartWare helpdesk ticket will cause your account to become restricted. This includes, but is not limited to, Paypal Disputes, Chargebacks, Unauthorized Charges, Bank reclaim, Credit Card Reclaim, and so on. If your account is linked to any other accounts, those accounts may become restricted as well.