TERMS OF USE
The effective date is 04/04/2017
IMPORTANT! PLEASE READ CAREFULLY THESE TERMS OF USE IN THEIR ENTIRETY BEFORE USING THE SERVICE.ACCEPTANCE OF TERMS
The following terms and conditions (collectively with the Privacy Policy at http://product.one/legal, the “Terms of Use”) are a legally binding agreement between each user (“you” or “your”) and SMACK Agency, LLC (“SMACK,” PRODUCT 1,” “we,” “us,” “our” or “ours”) and apply to
product.one
and the content, features, services, social media channels and applications offered by Product 1 (collectively “Service”). By accessing or using the Service, you are indicating that you have read and understand these Terms of Use, that you will abide by all of their terms and conditions and that you have reached the age of majority in your jurisdiction of residence. If you do not agree to any of these terms and conditions, please do not use the Service.
UPDATES TO TERMS
We reserve the right to change any terms of these Terms of Use at any time without prior notice to you. You agree that our posting of revised Terms of Use on our Service will constitute notice to you of such revised Terms of Use and that your access or use of the Service after such posting constitutes your agreement to be bound by such changes and the revised Terms of Use. Consequently, please review these Terms of Use before each and any access or use of our Service. Any changes to these Terms of Use will become a part of these Terms of Use and will apply as soon as they are posted or such later date as may be specified in the posted Terms of Use. Unless explicitly stated otherwise, any new features or functionality that augment or enhance the Service will be subject to these Terms of Use.
SPECIAL PROMOTION TERMS
Occasionally, we may offer the chance to participate in sweepstakes, contests, surveys and/or special offerings (“Special Promotion(s)”) through the Service. Special Promotions may be governed by terms and conditions that are separate from these Terms of Use. If the provisions of a Special Promotion terms and conditions conflict with these Terms of Use, those separate terms and conditions will prevail with respect to such Special Promotion, unless otherwise stated.
PRODUCT 1 CONTENT DEFINED
The “Product 1 Content” includes all materials that are included in, made available on or are otherwise a part of the Service (including past, present and future versions of the Service). For example, our Product 1 Content includes any and all domain names, text, blogs, articles, emails, photos, images, illustrations, videos, application software, technologies, source and object codes, designs, graphics, layouts, artwork and the “look and feel” of the Service.
TRADEMARKS
The Product 1 Content also includes Product 1 marks and logos that are trademarks or service marks of ours. All other trademarks, service marks and logos used on or through the Service are the trademarks, service marks or logos of their respective owners. You are not granted any rights to use any trademarks, service marks or logos through your to access the Service.
COPYRIGHT PROTECTION
The Product 1 Content and the Service are protected by copyright as a collective work or compilation under the copyright laws of the United States, Canada, and other countries. Further, each individual element of the Product 1 Content constitutes a copyrighted work, and you must abide by all additional copyright notices or restrictions contained in this Service. Unless specifically and expressly permitted, you may not copy, reproduce, distribute, publish, enter into a database, display, perform, modify, translate, broadcast, create derivative works from, transmit, sell, offer to sell or in any way exploit any Product 1 Content, in whole or in part. In other words, the Service and each individual element of Product 1 Content are protected from unauthorized copying, distribution, publication, dissemination and other use by copyright, trademark, patent and other laws, rules, regulations and international treaties. Except as specifically and expressly stated in these Terms of Use or otherwise granted to you in writing, no rights (by implication, estoppel or otherwise) are granted to you. Any and all rights not expressly and specifically granted are hereby reserved. Nothing in these Terms of Use will affect, impair or limit in any way our rights to fully exploit any and all of the Product 1 Content and Service. To the extent the Product 1 Content and Service, or any element thereof, are not protected by copyright laws, all such Product 1 Content and/or elements of the Service are proprietary to Product 1 and are similarly protected from unauthorized copying, distribution, publication, dissemination and other use.
PERSONAL USE
We grant you a limited, personal, non-exclusive, non-commercial, revocable, non-sublicensable and non-transferable license to use, view and/or play the Product 1 Content. This license is subject to your full compliance with these Terms of Use. You may also make one (1) occasional print copy of articles of personal interest to you. You may not distribute, sell or offer for sale the Service, Product 1 Content, or any element thereof. In addition, Product 1 Content may not be used to construct any kind of database.
USER GENERATED CONTENT
You understand that all information, including your name and email address, data, including your IP address and other personally and non-personally identifiable information you publicly post while using the Service, including information we collect from your social media profiles if you access the Service through our social media channels; or other content of any kind, uploaded, posted, made available, shared or transmitted by you or another user to or through the Service (each and all of the foregoing, “User Content”) is the sole responsibility of the person from whom such User Content originated (please see our Privacy Policy for further information about how we treat your personally-identifiable information). We do not control such User Content and do not make any guarantee whatsoever related to such User Content. By using the Service, you may be exposed to User Content, as well as material uploaded, posted, made available, shared or transmitted to or through the Service by us, that is offensive, indecent or objectionable. Under no circumstances will we be liable or responsible in any way for any claim related to such User Content or material.
While we have no obligation to review, monitor, display, accept or exploit User Content, we may, in our sole discretion, delete, move, reformat, edit, alter, distort, remove or refuse to exploit User Content at any time, for any reason, without notice or liability to you or any other party.
By publicly posting your User Content to or on the Service, you grant us, and our affiliates and agents, a non-exclusive, irrevocable and royalty-free license in perpetuity throughout the universe to host, display, transmit, distribute, reproduce, modify, edit, translate, create derivative works from, store, archive, cache, sell, sublicense and otherwise use your User Content on the Service, and you release all moral rights and similar rights in and to your User Content. You further perpetually and irrevocably grant SMACK the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation, remuneration or attribution of any kind to you or anyone else.
You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms of Use; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms of Use and grant SMACK these licenses. Upon SMACK’s request, you will furnish SMACK any documentation, substantiation or releases necessary to verify your compliance with these Terms of Use. SMACK reserves the right to remove any User Content from the Service or our social media channels at any time in our sole discretion.
RULES OF CONDUCT
As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Use. You are responsible for all of your activity in connection with the Services.
You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
Infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy product.one/legal);
You know is false, misleading, untruthful or inaccurate;
Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
Constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
Contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
Impersonates any person or entity, including any of our employees or representatives; or includes anyone’s identification documents or sensitive financial information.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
DISCLOSURE OF MATERIAL CONNECTIONS
You acknowledge that: (i) we may receive from marketers free products that we review or discuss in our content and (ii) we may receive compensation in connection with advertising or stories regarding run advertisements or stories on our sites concerning some of those products or companies that sell them (and other products sold by such companies) for which we sometimes receive compensation.
LINKS TO THE SERVICE
We reserve the right to revoke any link to any page of the Service or our social media channels in our sole discretion without notice. We also reserve the right to require that you obtain our prior written consent before you provide any links to any page or social media page of the Service.
THIRD PARTY LINKS
We may provide, or third parties may provide, on or through the Service, links to other websites or resources. You acknowledge and agree that we have no control over such sites and resources, are not responsible for the availability of such external sites or resources, and do not endorse nor are we responsible for or liable for any losses, expenses or damages, to you or your software, hardware or data, arising out of the operations of such external sites or resources. These links sites are for your convenience only, and you access them at your own risk, regardless of whether or not we receive compensation, commission or share of revenues generated by purchases via such links. Your communications and dealings with third parties through such link including, without limitation, the payment and delivery of products and services, and any terms, conditions, warranties and representations associated with any such communications and dealings, are solely between you and the third party.
SERVICE MODIFICATION OR TERMINATION
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. We will not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service.
We may at our sole discretion, under any circumstances, for any or no reason whatsoever and without prior notice to you, immediately terminate your access to the Service. We will not be liable or responsible to you or any third party for such termination.
DISCLAIMERS
This service is available “as is” and “as available” and “with all faults.” you use the service at your sole risk.
To the fullest extent permissible by law, SMACK and its officers, directors, employees, agents, licensors, suppliers, partners and affiliates:
(a) do not warrant that this service will be uninterrupted or error-free. there may be delays, omissions, interruptions and inaccuracies in the news, information or other materials available through this service;
(b) do not make any warranties, express or implied, including, without limitation, those of merchantability and fitness for a particular purpose, with respect to this service or any information or goods that are available or advertised or sold through this service (regardless of whether SMACK has received payment in connection therewith);
(c) do not make any representations, nor do we endorse the accuracy, completeness, timeliness or reliability of any advice, opinion, statement or other material or database displayed, uploaded or distributed in this service or available through links in this service;
(d) the content available on or through this service is in no way intended to and will not be construed to: (i) constitute professional medical, health, legal, tax, or financial advice; (ii) diagnose, cure, or treat any medical, health or other condition. always seek the advice of a qualified professional, or (iii) recommend, endorse, or advice regarding any medical or fitness product, program or treatment.
Further, SMACK reserves the right to correct any errors or omissions in this service. although SMACK intends to take reasonable steps to prevent the introduction of viruses, worms, “trojan horses” or other destructive materials to this service, SMACK does not guarantee or warrant that this service or materials that may be downloaded from this service do not contain such destructive features. SMACK is not liable for any damages or harm attributable to such features.
LIMITATION OF LIABILITY
Product 1 is not and will not liable to you for any direct, indirect, incidental, special, consequential, punitive or exemplary damages of any kind, including, damages for loss of profits, revenues, business, goodwill, use, data or other intangible losses, directly or indirectly related to: (a) the use or the inability to use the service; (b) 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; (c) unauthorized access to or alteration of your transmissions, data or information; (d) statements or conduct of any third party on the service; or (e) any other matter relating to the service (including, as a result of breach any terms of these terms of use), including goods and services provided by third parties, including advertisers, that are made available or advertised or sold through this service.
The Service is controlled and offered by SMACK Agency, LLC from its facilities in the United States of America for use by individuals located in the United States of America and Canada. SMACK makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
INDEMNIFICATION
To the extent permitted by applicable law, you agree to indemnify, defend and hold harmless SMACK, its officers, directors, employees, agents, licensors, suppliers, partners and affiliates from and against all losses, liabilities, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms of Use or any activity related to use of the Service (including negligent or wrongful conduct) by you or any other person accessing the Service via you Product 1 account, email account(s), social media account(s) or ISP address. We reserve the right to take over the exclusive defense of any claim. This section will survive termination of your access to the Service.
RELEASE
Not applicable in all jurisdictions; void where prohibited: If you have a dispute with one or more users of the Service, you release us from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. You also waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You also waive any and all benefits and rights that would otherwise accrue to you by reason of the provisions of any federal or state/provincial statute or principle of common law of any jurisdiction in Canada or the United States, or any political entity, nation, or province or local law or regulation that may govern this release, which statute, regulation, law or principle provides in substance something similar to California Civil Code § 1542.
GOVERNING LAW
These Terms of Use and the relationship between you and SMACK will be governed by the laws of the United States of America and the State of Arkansas as an agreement wholly performed therein without regard to its conflict of law provisions and the United Nations Conventions on Contracts (if applicable).
Any dispute relating in any way to your use of the Service will be submitted to confidential arbitration in New York, New York, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or Federal court in the state of New York, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms of Use will be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Use will be joined to an arbitration involving any other party subject to these Terms of Use, whether through class arbitration proceedings or otherwise.
Any claim or cause of action arising out of or related to use of the Service or these Terms of Use must be filed within one year after such claim or cause of action arose or be forever barred. Any claim by you that may arise in connection with these Terms of Use will be compensable by monetary damages and you will in no event be entitled to injunctive or other equitable relief.
You also hereby expressly waive any right to resort to any form of class action.
MISCELLANEOUS
Entire Agreement and Severability.
These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Notices. Unless otherwise specified in these Terms of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to info@smack.co
No Waiver.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
You may contact us at the following address: PO Box 1217, Bentonville, AR 72712
Your Privacy Rights
Last updated: 02/07/2017
Product.one Privacy Policy
This Privacy Policy describes the policies and procedures of SMACK Agency, LLC ( “SMACK”, “Product 1”, “we”, “our” or “us”) on the collection, use and disclosure of your information on (the “Site”) and the services, features, content or applications we offer (collectively with the Site, the “Services”). We receive information about you from various sources, including: (i) if you register for the Site and the Services, through your user account on the Services (your “Account”); (ii) your use of the Services generally; and (iii) from third party websites and services. When you use the Services, you are consenting to the collection, transfer, manipulation, storage, disclosure and other uses of your information as described in this Privacy Policy.
What Does This Privacy Policy Cover?
This Privacy Policy covers the treatment of personally identifiable information (“Personal Information”) gathered when you are using or accessing the Services. This Privacy Policy also covers our treatment of any Personal Information that our business partners share with us or that we share with our business partners.
This Privacy Policy does not apply to the practices of third parties that we do not own or control, including but not limited to any third party websites, services and applications (“Third Party Services”) that you elect to access through the Service or to individuals that we do not manage or employ. While we attempt to facilitate access only to those Third Party Services that share our respect for your privacy, we cannot take responsibility for the content or privacy policies of those Third Party Services. We encourage you to carefully review the privacy policies of any Third Party Services you access.
What Information Do We Collect?
The information we gather enables us to personalize, improve and continue to operate the Services. In connection with certain aspects of the Services, we may request, collect and/or display some of your Personal Information. We collect the following types of information from our users.
DMCA COPYRIGHT POLICY
SMACK AGENCY, LLC & Product 1.
PROCEDURE FOR REPORTING COPYRIGHT INFRINGEMENT:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, email address; A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
ONCE PROPER BONA FIDE INFRINGEMENT NOTIFICATION IS RECEIVED BY THE DESIGNATED AGENT:
It is Company’s policy:
to remove or disable access to the infringing material;
to notify the content provider, member or user that it has removed or disabled access to the material; and
that repeat offenders will have the infringing material removed from the system and that Company will terminate such content provider’s, member’s or user’s access to the service.
PROCEDURE TO SUPPLY A COUNTER-NOTICE TO THE DESIGNATED AGENT:
If the content provider, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
A physical or electronic signature of the content provider, member or user;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
Content provider’s, member’s or user’s name, address, telephone number, and, if available, email address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company’s discretion.
Please contact the Designated Agent to Receive Notification of Claimed Infringement for Company at info@smack.co or at:
SMACK
Attn: Copyright Agent
Post Office Box 1217
Bentonville, AR 72712