Smash Terms and
Conditions
(Last Modified: March
5, 2007)
Welcome to the smashcode.com
website owned by Brainstorm SMS Services LLC. Your use of the Smash.com website
and the text messaging services provided by Smash are subject to the terms and
conditions set forth below ("Terms of Use").
Acceptance of Terms
Please read these Terms of
Use carefully before using Smash's services or
website (the "Services"). By using the Services in any way you signify your
agreement to be legally bound by these Terms of Use. If you do not agree to all
the terms and conditions contained in the Terms of Use, please do not use the
Services in any manner. Smash reserves the right to limit or terminate your
access to the Smash Services if you do not comply with the Terms of Use.
Modification of the Terms of Use
Smash reserves the right, at
its sole discretion, to change, modify, update, add or remove portions of the
Terms of Use at any time, with or without notice. The most recent version of
the Terms of Use is publicly available online at http://www.smashcode.com/terms/.
Please check these Terms of Use periodically for changes. The date of the most
recent version will be displayed at the top of the Terms of Use for your
convenience. Your continued use of the Services following the posting of any
changes to the Terms of Use will mean that you agree to and accept such
changes.
Purpose and Description of Services
Smash enables advertisers to
register keywords that can be placed in their other advertising along with a
Smash owned short code. Consumers with SMS-enabled communications devices can
send text messages containing the printed keywords to the Smash short code in
order to receive, via SMS, additional information concerning the advertiser's
products or services.
Each keyword is registered
for a specific term, and Smash will forward the advertiser's pre-configured information
to consumers only during the period of registration. Advertisers acquire no vested ownership in
Smash keywords as such. After a keyword's registration has expired Smash may make the keyword available to
another advertiser. In such cases the advertiser may register another keyword
with the Smash system. Each advertiser
is responsible for removing expired keywords from advertising materials.
Smash may determine, at its
sole discretion, to limit advertisers' use of the Services, impose data storage
limitations, charge additional fees for the Services or otherwise modify the
Services in the future. You acknowledge and agree that these changes may take
place and that Smash shall have no liability stemming from such changes.
Fees and Payments
Advertisers and consumers are
responsible for any fees, charges and expenses incurred in using and accessing
the Services. Consumers are not currently charged for using the Smash Services.
However, they may be subject to fees from their cellular carrier based on their
service plan. Consumers are advised to review their cellular plans to find out
the cost of sending and receiving SMS messages. Advertisers are charged fees
for registering keywords with Smash based on the duration of registration.
Smash reserves the right to increase fees or impose additional fees for use of
or access to the Smash Services at Smash's sole
discretion.
Smash uses reasonable efforts
to ensure that the Services are available on a 24/7 basis. However, there will
be occasions when the Services will be interrupted for maintenance, upgrades
and emergency repairs or due to failure of telecommunications links and
equipment that are beyond the control of Smash. By using the Services you agree
that Smash shall not be liable to you for any modification, suspension or
discontinuance of the Services.
Restrictions on Use of the Service
You may not use the Services
to upload or transmit any items that are unlawful, harmful, threatening,
abusive, harassing, tortious, defamatory, vulgar,
obscene, libelous, invasive of another's privacy, hateful, or racially,
ethnically or otherwise objectionable. Further, you may not use the Services to
facilitate any infringement or misappropriation of any intellectual property
rights of a third person or for any illegal activities.
All messages, information,
digital files or other materials, whether publicly posted or privately
transmitted, are the sole responsibility of the advertiser who sends or
publishes such items in connection with the Services. Accordingly, advertisers
are responsible for all items that they upload, post, email, transmit or
otherwise make available via the Service. Smash reserves the right, but has no
obligation, to monitor the materials uploaded and transmitted by advertisers.
Smash shall have the right to remove any such material that in its sole opinion
violates, or is alleged to violate, any applicable law or these Terms of Use.
In such a case Smash, at its sole discretion may choose to work with the
advertiser in order to update or change the offending material. Notwithstanding
this right of Smash, the advertiser remains solely responsible for the content
of the materials posted on and transmitted using the Services.
No Unlawful or Prohibited Use
As a condition of your use of
the Services as an advertiser or consumer, you will not use the Services for
any purpose that is unlawful or prohibited by these Terms of Use. You may not
use the Services in any manner that could damage, disable, overburden, or
impair any Smash server, or the network(s) connected to any Smash server, or
interfere with any other party's use and enjoyment of the Services. You may not
use the Services to upload or transmit content or advertisements
that contains content that you do not have a lawful right to display or
transmit. You may not use the Services to upload or transmit content that
infringes on another parties' intellectual property rights, without their prior
written consent; and you may not use the Service to upload or transmit
advertisements that violate the privacy or personal rights of others without
prior written consent.
Age Requirements and Limitations on Use of Service
Smash is concerned about the
safety and privacy of all its users, particularly children. For this reason,
children under the age of 13 may not use the Services either as an advertiser
or consumer. If Smash determines that a Smash user, either an advertiser or
consumer, is under 13 then text messages from that consumer's telephone number
will not be accepted and their Smash account, if one exists will be disabled
and deleted. Users between the ages of 13 and 18, by using the Services, affirm
that they have their parent's permission to use the Services.
Privacy Policy
Smash is committed to
maintaining the privacy of its users and advertisers. Smash's
privacy policy may be found at: http://smashcode.com/privacy.
By utilizing the Services you are consenting to the terms of this Privacy
Policy.
Links
Smash's website may contain links to third-party sites that
are not under the control of Smash. In addition Smash may transmit to consumers links to third-party websites, not under the
control of Smash, via text messaging. In these cases, Smash is not responsible
for the contents of any linked site or any link contained in a linked site, or
any changes or updates to such sites. The inclusion of any link does not imply
that Smash endorses or accepts any responsibility for the content on such
third-party site. As a consumer, your correspondence or business dealings with,
or participation in promotions of, third party websites found on or through the
Smash site, including payment and delivery of related goods or services, and
any other terms, conditions, warranties or representations associated with such
dealings, are solely between you and such third party. Smash is not responsible
for any loss or damage of any kind incurred as the result of any such dealing
or as a result of the presence of links to such third party websites on the
Smash site or in text messages transmitted via the Smash service.
Disclaimer Of Warranty;
Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE HEREIN, ALL INFORMATION ON THIS WEB SITE AND DELIVERED VIA TEXT
MESSAGING UTILIZING THE SERVICES IS PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY
KIND AND Smash HEREBY DISCLAIMS ALL WARRANTIES EITHER EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE
HEREIN, Smash DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, OR QUIET
ENJOYMENT.
In no event shall Smash be
liable for any special, indirect or consequential damages, or any damages
whatsoever resulting from loss of use, data or profits, whether in an action
based on contract, negligence or other tortious
action, arising out of or in connection with the use of the Services or
information delivered via the Services.
In no event shall Smash's liability to any
user of the Services exceed the amount, if any, actually received by Smash from
such user as a fee for use of the Services.
Except as expressly provided
otherwise, you assume all risks concerning the suitability and accuracy of the
information contained within the Services, and Smash does not investigate or
warrant the truth or accuracy of any statement made by any advertiser. The
Services and the information transmitted via the Services may contain technical
inaccuracies or typographical errors. Smash assumes no responsibility for and
disclaims all liability for any such inaccuracies, errors, or omissions in the
Services.
Smash may make changes to the
Services, and any other information and materials on the Smash Web site at any
time and without notice.
Indemnity
You agree to indemnify,
defend, and hold Smash and its affiliates, officers, agents, co-branders,
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 use of
the Services, your connection to the Services, information you provide to any
person using the Services, your violation of the Terms of Use, or your
violation of any rights of other users of the Services.
Termination
Smash reserves the right to
terminate your privilege to use the Services as advertiser or consumer at any
time for any reason, including without limitation, if Smash has been notified
by third parties or has a good faith concern that any of your activities may
infringe third party rights or violate the laws or regulations of any
applicable jurisdiction.
Forum and Choice of Law
These Terms of Use shall be
governed by and construed in accordance with the laws of the State of
Entire Agreement
These Terms of Use and the
Privacy Policy referred to above constitute the entire agreement between you
and Smash with respect to the subject matter contained herein and supersedes
any other agreement, proposals and communications, written or oral, between
Smash and you with respect to the subject matter hereof. If a court should find
that one or more rights or provisions contained in these Terms of Service are
invalid, you agree that the remainder of the Terms of Use shall be enforceable.
Comments and Questions
If you have any questions,
concerns, or comments regarding Smash's Terms of Use,
please email us at: terms@smashcode.com.
You may also contact us at:
Smash, Inc.
Copyright and Trademark Information
COPYRIGHT NOTICE: Copyright © 2006-2007 Brainstorm SMS Services LLC. All Rights Reserved. Smash is a service mark of Brainstorm SMS Services LLC.