MySMARTblog Terms of Service
1. GENERAL TERMS
Welcome to MySMARTblog, LLC (the “Service”). Whether you are an account holder having a Blog Site on one of MSB’s web services, including the URL www.mysmartblog.com (an “Account Holder”), or a guest invited by an Account Holder (a “Guest”) to post comments or author content on an Account Holder’s Blog Site, your use of the Service is subject to these Terms of Service (“TOS”). MSB reserves the right to update and change the TOS from time to time without notice or acceptance by you. The TOS will also be applicable to the use of the Service on a trial basis. By using the Service, you signify your irrevocable acceptance of the TOS.
2. SERVICE DESCRIPTION
MSB provides some Account Holders with a web site on MSB’s Internet Property (a “MSB Blog Site”). Each MSB Blog Site has a limited disc space. The Service also includes tools that enable Account Holders to send MSB-published content to third-party websites. The type and number of tools may vary from time to time according to MSB’s policies and your status as an Account Holder or a Guest. Unless explicitly stated otherwise, any new feature that augments or enhances the current Service, including the release of new MSB tools and resources, shall be subject to the TOS. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the Service may include certain communications from MSB, such as service announcements, administrative messages and newsletters, and that these communications are considered part of MSB membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new feature that augments or enhances the current Service, including the release of new MSB properties, shall be subject to the TOS. You agree not to access the Service by any means other than through the interfaces that are provided by MSB for use in accessing the Service.
In order to use the Service, you must have a valid MSB ID. To be an Account Holder with your own Blog Site, you must provide MSB with a credit card, billing and other information (“Registration Data”). Account Holders will choose a password and account designation for your Blog Site during the Service’s registration process. If you are using the Service as a Guest, you must also go through the registration process and provide the registration data requested. You are responsible for maintaining the confidentiality of the password and account, and are responsible for all activities that occur under your password or account. You agree (a) to notify MSB immediately of any unauthorized use of your password or account or any other breach of security, and (b) to ensure that you log out of your account at the end of each session. MSB cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 3. In consideration of use of the Service, you agree: (a) to provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form, and (b) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or MSB has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MSB has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). If you register to use the Service on a free-trial basis, you will also have to complete the registration process, including entering valid credit card information. Upon the conclusion of the trial, if you have not cancelled the trial, your trial account will be automatically converted to a paid account and you will be billed for the Service. Users under 13 years of age are required to have a parent or legal guardian review and complete the registration process.
The credit card that Account Holders provide as part of the Registration Data will be automatically and immediately billed in U.S. dollars. Please note that unless MSB gives notice to the contrary, payment for the Service is billed on an annual basis and is non-refundable.
5. CANCELLATION AND TERMINATION
If you cancel the Service before the end of the then-current term, your cancellation will take effect immediately without proration or refund. After cancellation, you will no longer have access to your MSB Blog Site and all information contained therein may be deleted by MSB. The website will no longer be available online. Site access can be restored with a hosting subscription for a seperate monthly fees. If you are a Guest, the Account Holder who invites you may request MSB to, and MSB may, terminate your Service at any time and for any reason. If your credit card is invalid for any reason, the Service may be cancelled and all the information contained in your MSB Blog Site may be deleted permanently. You agree that MSB, in its sole discretion, may terminate your password, and/or account, and remove and discard any Content within the Service (including, but not limited to your MSB Blog Site if you are an Account Holder), for any reason, including and without limitation, the lack of use, or if MSB believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Any contracts, verbal or written or assumed, in conjunction with your deleted MSB Blog Site (as applicable) and all its parts, at MSB’s discretion, will be terminated as well. MSB may also in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that MSB may immediately deactivate or delete your MSB Blog Site, as applicable, and all related information and files. MSB reserves the right to bar any further access to such files or the Service. You agree that MSB shall not be liable to you or any third-party for any termination of your access to the Service, and MSB accepts no liability for information deleted upon termination.
7. OWNERSHIP OF WEBSITE ACCOUNT AND SECURITY
You are responsible for maintaining the security of your account and MSB Blog Site, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the MSB Blog Site, including those of your Guests. You agree immediately to notify MSB of any unauthorized uses of the account or any other breaches of security. MSB cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will MSB be liable, in any way, for any acts or omissions by an Account Holder or a Guest, including any damages of any kind incurred as a result of such acts or omissions.
8. CONTENT RULES
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (together,”Content”) are the sole responsibility of the person from which such Content originated. This means that you, and not MSB, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. MSB does not control the Content (other than MSB Content, as defined below) posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.
You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will MSB be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that MSB does not pre-screen Content, but that MSB and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, MSB and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by MSB or submitted to MSB. You acknowledge and agree that MSB may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of MSB, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should Content be found or reported to be in violation with, but not limited to, the following terms, the actions to be taken will be determined by MSB in its sole discretion.
You agree that you will not:
(a) upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) harm or attempt to harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, MSB personnel, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or “spam.” This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam,” such as (a) sending mass email to recipients who haven’t requested email from you or with a false return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical;
(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any regulations having the force of law;
(k) stalk or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
(m) offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) MSB determines, in its sole discretion, is inappropriate for sale through the Service provided by MSB;
(n) use the Service as a forwarding service to another website; or
(o) exceed the scope of the Service that you have signed up for; for example, accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other peoples comments or content as a Guest. If any user is reported to be in violation with the letter or spirit of these terms, MSB retains the right to terminate such account at any time without further warning.
9. CONTENT OWNERSHIP AND RULES: YOUR CONTENT
If you are an Account Holder, you will have the ability to supply Content which you have authored for placement on your MSB Blog Site. Such content is referred to herein as “Your Content.” MSB does not claim ownership of Your Content. Subject to the terms and conditions of this Agreement and during the term hereof, however, you hereby grant MSB a world-wide, royalty-free, non-exclusive license to reproduce, adapt and publish Your Content solely for the purpose of displaying, distributing and promoting your MSB Blog Site on MSB’s Internet properties. This license exists only for as long as you continue to be a MSB customer and shall be terminated at the time your MSB Blog Site is terminated.
You acknowledge that MSB does not pre-screen Your Content, but that MSB and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any of Your Content that is available via the Service. Without limiting the foregoing, MSB and its designees shall have the right to remove any of Your Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any of Your Content, including any reliance on the accuracy, completeness, or usefulness of such content.
You acknowledge and agree that MSB will be the only external content provider for your MSB Blog Site in content categories where MSB provides MSB Content (as defined below).
10. CONTENT OWNERSHIP AND RULES: MSB CONTENT
If you are an Account Holder, MSB will supply Content for placement on your MSB Blog Site daily or at least as often as new Content authored by MSB becomes available to similarly-situated customers of MSB. Such Content is referred to herein as “MSB Content.” MSB content will not be supplied on federal holidays or on days in which the stock and/or bond markets are closed. You shall have no ownership interest in the MSB Content. Subject to the terms and conditions of this Agreement and during the term hereof, however, MSB hereby grants you a limited, non-exclusive and non-transferable license to use the MSB Content as follows: (1) to receive MSB Content from MSB and to have the MSB Content automatically incorporated into your MSB Blog Site; (2) to include on your MSB Blog Site hypertext links which enable “point and click” access to locations of MSB’s websites specified by MSB (and subject to change by MSB from time to time). The foregoing license exists only for so long as you continue to be a MSB Account Holder and shall be terminated at the time your Blog Site is terminated. (4) to receive MSB Content from MSB and to have the MSB Content automatically incorporated into your third-party Blog Site;
Each day on which MSB Content is published by MSB, you may elect: (1) MSB Content Only — to incorporate that day’s MSB Content into your MSB Blog Site, verbatim, alone; or (2) Mixed Content — to incorporate that day’s MSB Content into your MSB Blog Site, verbatim, together with Your Content, provided that the MSB Content must appear in distinct blog entries from Your Content. You do not have any right to remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any MSB Content; or (3) reproduce or sub-license, re-sell or otherwise distribute or exploit any portion of the MSB Content, in any tangible or intangible form, to any Person, and any attempt to do so shall be void. Notwithstanding the foregoing, you may include recommendation links for MSB Content to Digg.com, del.icio.us, and similar services.
MSB may from time to time issue additional guidelines with respect to use or display of any of the MSB Content, or issue requirements based upon MSB’s obligations to third-party content providers, and you will implement such requirements upon request. You will implement and/or cooperate with MSB in its implementation of bug fixes, updates, and minimum build requirements for any MSB Content supplied by MSB, promptly upon the request of MSB.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because MSB has no control over such sites and resources, you acknowledge and agree that MSB is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that MSB shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
12. REPRESENTATIONS, WARRANTIES AND INDEMNITY
You hereby represent and warrant to MSB as follows:
(a) You have legal power and authority to enter into this Agreement and to perform the acts required of you hereunder;
(b) Your actions pursuant to this Agreement do not and will not violate any other agreement to which you are bound;
(c) You will comply with all applicable laws, rules and regulations when using the Service; and
(d) This Agreement will constitute your legal, valid and binding obligation, enforceable against you in accordance with its terms.
You agree to indemnify and hold MSB, and its subsidiaries, affiliates, owners, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your Content, your use of the Service, your Guests’ activities, your connection to the Service, your violation of the TOS, or your violation of any rights of another, whether you are a registered user or not.
13. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that MSB may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time. You are responsible for reviewing the current TOS posted on MSB’s web sites from time to time.
14. MODIFICATIONS TO SERVICE
MSB reserves the right at any time and from time to time to modify or discontinue the Service, temporarily or permanently, with or without notice at any time. You agree that MSB shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
15. MYSMARTBLOG’S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that certain information contained presented to you through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by MSB or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MSB EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) MSB WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, MSB IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, INFORMATION, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. MSB DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
17. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MSB SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MSB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
18. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 16 AND 17 MAY NOT APPLY TO YOU.
19. ADDITIONAL SOFTWARE
With respect to any additional software that may be made available by MSB in connection with the Service, if you elect to download or access such additional software, you understand that you may have to agree to additional terms and conditions before you use such software.
20. INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
21. MISCELLANEOUS TERMS
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service. The TOS and the relationship between you and MSB shall be governed by the laws of the State of Illinois without regard to its conflict of law provisions. You and MSB agree to submit to the personal and exclusive jurisdiction of the courts located within Phoenix, Arizona. The failure of MSB to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. The TOS constitutes the entire agreement between you and MSB and governs your use of the Service, superseding any prior agreements between you and MSB (including, but not limited to, any prior versions of the TOS). You also may be subject to additional terms and conditions that may apply when you use third-party services, content or software. If any provision of the TOS or the incorporated documents are found by a court of competent jurisdiction to be invalid, the you nevertheless agree with MSB that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS should remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.