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Terms of Use |
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| Section 1. Legal
Information |
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SMARTDIG INC. ("SMARTDIG",
"COMPANY," "WE," "US") PROVIDES THIS WEB
SITE AND ALL SITE-RELATED SERVICES, INCLUDING THE CONTENT AND
CODE RELATED THERETO (COLLECTIVELY, THE "SITE"),
SUBJECT TO YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS SET
FORTH BELOW. PLEASE READ THIS TERMS OF USE AGREEMENT
("AGREEMENT") CAREFULLY BEFORE USING THIS SITE. By
using the Site, you agree to be bound by these terms and
conditions. If you do not agree to these terms and conditions,
please do not use the Site.
This Agreement is made
between the Company and you, the Site visitor and/or
registered user ("you"). We reserve the right at any
time to:
- Change the terms and conditions of this
Agreement without notice;
- Change the Site, including eliminating or
discontinuing any content on or feature of the Site,
restricting the hours of availability or limiting the amount
of use permitted; or
- Change any fees or charges
for use of the Site, including instituting new or increased
fees or charges for the use of the Site or any other
Site-related services or any feature thereof.
Any changes we make will be effective
immediately upon notice, which we may provide by any means
including, without limitation, posting on the Site or via
electronic mail. Your use of the Site after such notice will
be deemed acceptance of such changes. Be sure to review this
Agreement periodically to ensure familiarity with the most
current version.
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Section 2. Ownership; Proprietary Rights |
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© 2001-2002 SmartDig Inc. All Rights
Reserved.
The Site, including all pages within and all
code related thereto, is the property of SmartDig Inc. No
portion of the materials or code on these pages or anywhere on
the Site may be reprinted or republished in any form without
the express written permission of the
Company.
SMARTDIG™ is a trademark owned by the Company, and
all other trademarks and/or service
marks used in this Site are the trademarks and/or service
marks of their respective
owners. The Site is owned and operated by us in
conjunction with others pursuant to contractual arrangements.
Unauthorized use of the materials on the Site may violate
copyright, trademark, patent and other laws and is prohibited.
You acknowledge that you do not acquire any ownership rights
by using the Site. |
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| Section 3. Warranty Information;
Disclaimer |
THIS SITE, INCLUDING ANY CONTENT OR
INFORMATION CONTAINED WITHIN IT OR ANY SITE RELATED SERVICE,
OR ANY PRODUCT OR SERVICE LICENSED, PURCHASED OR OTHERWISE
MADE AVAILABLE THROUGH THE SITE, IS PROVIDED "AS IS" WITH NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR
IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO
APPLICABLE LAW, SMARTDIG INC. AND ITS SUBSIDIARIES,
AFFILIATES, SUPPLIERS, SPONSORS, AND AGENTS DISCLAIM ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE AND NON-INFRINGEMENT NEITHER SMARTDIG
INC., ITS SUBSIDIARIES, AFFILIATES, SPONSORS, SUPPLIERS NOR
AGENTS MAKES ANY REPRESENTATION AS TO THE RESULTS TO BE
OBTAINED FROM USE OF THE SITE OR THE SITE-RELATED
SERVICES.
SMARTDIG INC. AND ITS SUBSIDIARIES,
AFFILIATES, SUPPLIERS, AND AGENTS DO NOT WARRANT THAT YOUR USE
OF THE SITE OR THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE,
OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE
(OR THE SERVER(S) ON WHICH IT IS HOSTED) OR SOFTWARE ARE FREE
OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT
YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL
TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO
ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU
ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE
AND THE SOFTWARE AND YOUR RELIANCE THEREON. NO OPINION,
ADVICE, OR STATEMENT OF SMARTDIG INC. OR ITS SUBSIDIARIES,
AFFILIATES, SUPPLIERS, AGENTS, REGISTERED USERS, OR VISITORS,
WHETHER MADE ON THE SITE, OR OTHERWISE, SHALL CREATE ANY
WARRANTY. YOUR USE OF THE SITE AND ANY MATERIALS PROVIDED
THROUGH THE SITE ARE ENTIRELY AT YOUR OWN
RISK.
You acknowledge that the Site could include
inaccuracies or errors, or materials that violate these Terms
of Use (specifically, the "Code of Conduct" section).
Additionally, you acknowledge that unauthorized additions,
deletions and alterations could be made by third parties to
the Site. Although the Company attempts to ensure the
integrity and the accuracy of the Site, it makes no guarantees
whatsoever as to the Site's completeness or correctness. In
the event that such a situation arises, please contact us at
service@smartdig.com
with, if possible, a description of the material to be checked
and the location (URL) where such material can be found on the
Site, as well as information sufficient to enable us to
contact you. We will try to address your concerns as soon as
reasonably practicable.
The Company does not evaluate or censor the
business for sale listings or other information posted to the
Site. Moreover, the Company is not involved in the actual
transaction, if any, between potential business buyers and
sellers. Consequently, we have no control over the quality,
safety or legality of the business for sale listings posted to
the Site, and thus we are not responsible for the truth or
accuracy of such listings.
Because user authentication on the
Internet is difficult, the Company cannot and does not confirm
that users are who they claim to be. Because we do not and
cannot be involved in user-to-user transactions or control the
behavior of the Site's users, in the event that you have a
dispute with one or more Site users, you release SmartDig Inc.
(and its subsidiaries, affiliates, agents and employees) from
all claims, demands and damages (actual and consequential,
direct and indirect) of any kind and nature, known and
unknown, suspected and unsuspected, disclosed and undisclosed,
arising out of or in any way related to such disputes. You
acknowledge that there may be certain risks, including but not
limited to the risk of physical harm and of dealing with
strangers, underage persons or people acting under false
pretenses, associated with pursuing relationships begun on the
Internet. You assume all risks related to dealing with other
users with whom you have had contact through the
Site.
You acknowledge and agree that you are
solely responsible for the form, content and accuracy of any
information you post to the Site.
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| Section 4.
Limitation of Liability |
NEITHER SMARTDIG NOR ITS SUBSIDIARIES,
AFFILIATES, SUPPLIERS, ADVERTISERS, AGENTS OR SPONSORS ARE
RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER
THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE
AND/OR CONTENT CONTAINED ON THE SITE, OR ANY PRODUCT OR
SERVICE PURCHASED THROUGH THE SITE. YOUR SOLE REMEDY
FOR DISSATISFACTION WITH
THE SITE AND/OR CONTENT CONTAINED WITHIN THE SITE IS TO STOP
USING THE SITE. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO
COMPANY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER
IN CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE
OR OTHERWISE) SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY,
TO ACCESS THE SITE.BECAUSE SOME STATES OR JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY
NOT APPLY TO YOU. IF ANY OF THE FOREGOING LIMITATIONS OF
LIABILITY OR THE EXCLUSION OF WARRANTY SET FORTH ABOVE IS HELD
TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN
SMARTDIG’S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES SHALL BE
LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED WITH A MAXIMUM
DAMAGE AMOUNT BEING FIVE HUNDRED DOLLARS
($500.00).
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| Section 5.
Acknowlegdment |
This Site may contain links to other web
sites operated by third parties, other than affiliates of the
Company ("Linked Sites"). We neither control nor endorse such
other web sites, nor have we reviewed or approved any content
that appears on the Linked Sites. You acknowledge that when
you click on a link to visit a Linked Site, a frame may appear
that contains the Company logo, advertisements and/or other
content selected by the Company. You acknowledge that the
Company and its sponsors neither endorse nor are affiliated
with the Linked Sites and are not responsible for any content
that appears on the Linked Sites. You also acknowledge that
the owner of the Linked Site neither endorses nor is
affiliated with the Company and its
sponsors. |
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| Section 6. Void Where Prohibited;
Indemnification |
Although the Site is accessible
worldwide, not all products or services discussed, referenced
or made available on the Site are available to all persons or
in all geographic locations or jurisdictions. We make no
representation that materials in the Site are appropriate or
available for use in locations outside the United States.
Those who choose to access the Site from other locations do so
on their own initiative and at their own risk and are
responsible for compliance with local laws if and to the
extent local laws are applicable. The Company reserves the
right to limit the availability of the Site and/or the
provision of any product or service described thereon to any
person, geographic area, or jurisdiction it so desires at any
time and in our sole discretion and to limit the quantities of
any such product or service that we
provide.
You agree to indemnify, defend and hold us,
our affiliates, sponsors, officers, directors, employees,
agents and representatives harmless from and against any and
all claims, damages, losses, costs (including reasonable legal
and accounting fees), or other expenses that arise directly or
indirectly out of or from (a) your use of the Site (or any
part thereof), (b) your breach of this Agreement, (c) your
violation of the Code of Conduct, and/or (d) your activities
in connection with the Site or Site-related
services.
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| Section 7.
Code Of Conduct |
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While using the Site or Site-related
services, you agree not to do any of the following without our
prior written authorization:
- Post any inaccurate, untimely,
stale, incomplete or misleading
information.
- Resell or make available to any
person not expressly licensed by SmartDig, whether via
phone, fax, e-mail, mail or any other medium, any of the
SmartDig services or any information obtained
therefrom.
- Share passwords, login information
or named user identification or otherwise allow multiple
offices or users to access the SmartDig service on a basis
that is other than what was originally subscribed for. A
named user is defined as one unique individual user with one
unique password. An office is defined as a location where a
named user routinely accesses or uses the SmartDig service
under express license from
SmartDig.
- Use any search engine, software,
tool, agent or other device or mechanism, including without
limitation browsers, spiders, robots, avatars or intelligent
agents (other than those made available by SmartDig on the
Site or other generally available third party web browsers,
e.g., Netscape Navigator or Microsoft Internet Explorer), to
navigate or search the
Site.
- Engage in spamming, flooding,
soliciting or mass marketing via e-mail, direct mail,
telephone, or otherwise to SmartDig business seekers or
subscribers.
- Express or imply that any statements
you make are endorsed by
us.
- Impersonate any person or entity, including,
without limitation,
a SmartDig employee or agent,
a user of SmartDig's services, or otherwise misrepresent
your affiliation with any person or
entity.
- Respond to a business for sale
listing on behalf of anyone other than
yourself.
- Delete or revise any material posted
by any other person or
entity.
- Restrict or inhibit any other user
from using and enjoying the Site and services, including,
without limitation, by means of "hacking" or defacing any
portion of the
Site.
- Post or transmit (a) any incomplete,
false or inaccurate information; (b) any content or
information that is unlawful, fraudulent, threatening,
abusive, libelous, defamatory, obscene or otherwise
objectionable or harmful, or that infringes on our or any
third party's intellectual property or other rights; (c) any
advertisements, solicitations, chain letters, pyramid
schemes, investment opportunities, or other unsolicited
commercial communication; (d) any information or software
that contains a virus, worm, Trojan horse or other harmful
or disruptive component; (e) any trade secret of any third
party; or (f) any material, nonpublic information about
companies without the authorization to do
so.
- Use the Site for any unlawful
commercial, research or information gathering
purposes.
- Communicate, send, or place
unsolicited e-mail, telephone calls, mailings or other
contacts to posting individuals and
entities.
- Modify, adapt, sublicense,
translate, sell, reverse engineer, decompile or disassemble
any portion of the
Site.
- Remove any copyright, trademark, or
other proprietary rights notices contained in the
Site.
- "Frame" or "mirror" any part of the
Site.
- Link to any page of or material on the
Site other than the URL located at http://www.smartdig.com/.
- Use any robot, spider, site
search/retrieval application, or other manual or automatic
device or process to retrieve, index, "data mine," or in any
way reproduce or circumvent the navigational structure or
presentation of the Site or its
contents.
You and your company agree to and will
hold SmartDig harmless from any claims, damages or losses
incurred by you or your company or any other party as a result
of your use of the SmartDig system.
You agree to comply with all
applicable laws, rules and regulations in connection with your
use of the Site and Site-related
services. The Company has no obligation to monitor the
Site or Site-related services, including any forum, or any
materials that you or other third parties transmit or post on
to the Site. However, you acknowledge and agree that the
Company has the right (but not the obligation) to monitor the
Site and Site-related services, including any forum, and the
materials you transmit or post, to alter or remove any such
materials (including, without limitation, any posting to the
Site), and to disclose such materials and the circumstances
surrounding their transmission to any third party in order to
operate the Site properly, to protect itself, its sponsors,
its registered users and visitors, and to comply with legal
obligations or governmental requests. The Company reserves the
right to refuse to post or to remove any information or
materials, in whole or in part, that it deems in its sole
discretion to be unacceptable, offensive or in violation of
this Agreement. The Company also reserves the right to
prohibit any user who, in the Company's sole discretion,
violates the Code of Conduct or other terms of this Agreement
from using the Site and related services. Such prohibition may
occur without notice to the user.
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| Section 8.
Making Purchases |
If products or services are made
available at the Site, and if you wish to license or make
purchases of products or services described on the Site, you
may be asked by us or the applicable merchant or service
provider to supply certain information, including but not
limited to credit card or other information. If you submit
such information to us, you understand that any such
information will be treated by Company in the manner described
in our Privacy Policy. You agree that all information that you provide
to us or any such merchant or service provider will be
accurate, complete and current. You agree to pay all charges
incurred by you or any users of your account and credit card
or other payment mechanism at the prices in effect when such
charges are incurred. You will also be responsible for paying
any applicable taxes relating to your purchases. Moreover, you
agree to review and to comply with the terms and conditions of
any specific agreement, if any, that you enter into with the
merchant and/or service provider in connection with the
licensing or purchase of any product or
service.
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| Section 9.
Submissions |
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Because our designees and we host business
for sale boards and other forums found on the Site and
elsewhere and, therefore, redistribute materials you give us,
we require certain rights in those materials. Therefore, by
sending or transmitting to us resources, information, ideas,
notes, concepts, trademarks, service marks or other materials
(including, but not limited to, business for sale postings)
(collectively, "Content"), or by posting such Content to any
area of the Site, you grant us and our designees a worldwide,
non-exclusive, sub-licensable (through multiple tiers),
assignable, royalty-free, perpetual, irrevocable right to link
to, reproduce, distribute (through multiple tiers), adapt,
create derivative works of, publicly perform, publicly
display, digitally perform or otherwise use such Content in
any media now known or hereafter developed. You hereby grant
the Company permission to display your logo, trademarks and
company name on the Site and in press and other public
releases or filings. Further, by submitting Content to the
Company, you acknowledge that you have the authority to grant
such rights to the Company. PLEASE NOTE THAT YOU RETAIN
OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS AND SERVICE MARKS IN
ANY CONTENT YOU SUBMIT.
None of the Content is endorsed
by the Company, and the Company cannot and does not make any
representations with respect to the truth or reliability of
the Content. The Company reserves the right to remove any
Content, in whole or in part, from the Site.
Communications between the Company and
the users of the Site are not
confidential.
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| Section 10. Registration; Use Of Secure Areas And
Passwords |
Some areas of the Site may require you to
register with us. When and if you register, you agree to (a)
provide accurate, current, and complete information about
yourself as prompted by our registration form (including your
e-mail address) and (b) to maintain and update your
information (including your e-mail address) to keep it
accurate, current, and complete. You acknowledge that should
any information provided by you be found to be untrue,
inaccurate, not current, or incomplete, we reserve the right
to terminate this Agreement with you and your use of the
Site.
As part of the registration process, you will be
asked to select a user id and password. We may refuse to allow
you to use a user id that impersonates someone else, may be
illegal, may be protected by trademark or other proprietary
rights law, is vulgar or otherwise offensive, or may cause
confusion, as determined by us in our sole discretion. You
will be responsible for the confidentiality and use of your
password and agree not to distribute, transfer or resell your
use of or access to the Site to any third party. If more than
one individual wishes to use a single password belonging to a
registered user, such registered user must request permission
from the Company in writing, it being understood that the
Company shall be under no obligation to approve any such
request. If you are a business for sale seeker who has reason
to believe that your account with us is no longer secure, you
must promptly change your password by updating your account
information from the "Search Profile" tab of the Site and
immediately notifying us of the problem via email addressed to
service@smartdig.com. If you are a customer who has reason to believe that
your account with us is no longer secure, you must promptly
contact Customer Support via email addressed to service@smartdig.com. YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR
MAINTAINING THE CONFIDENTIALITY OF YOUR USER ID AND PASSWORD
AND SOLELY AND ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES
THAT ARE CONDUCTED THROUGH YOUR
ACCOUNT. |
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| Section 11. Dispute
Resolution |
Any controversy or claim arising out of or
relating to this Agreement or its breach, or otherwise
relating to the Site (with the exception of injunctive relief
sought by SmartDig for any violation of SmartDig’s licensors
and suppliers’ proprietary rights), shall be settled by
arbitration in accordance with the then-current rules of the
American Arbitration Association. Before entering into
arbitration, the parties shall each appoint an arbitrator, and
these two arbitrators shall select a third arbitrator to be a
member of the panel. Should the two arbitrators not be able to
agree on a choice of the third, then the American Arbitration
Association shall make the appointment of a person who is
neutral to the parties. None of the arbitrators shall be
officers or employees of the parties to this Agreement. Such
arbitrators shall be experts in the computer/information
technology field. The cost of arbitration, including fees per
arbitrator, shall be borne equally by the parties. The
location of arbitration shall be determined by
SmartDig. |
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Section 12. Miscellaneous |
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This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject
matter hereof, and any and all written or oral agreements
heretofore existing between the parties hereto are expressly
canceled. This Agreement is not assignable, transferable or
sub-licensable by you except with prior written consent. Any
heading, caption or section title contained in this Agreement
is inserted only as a matter of convenience and in no way
defines or explains any section or provision hereof. The
Company reserves the right in its sole discretion to terminate
the use of the Site by a user at any time.
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