Terms and Condition
EFFECTIVE DATE: JULY, 2014. LAST UPDATED: JULY, 2014
By using www.TheSmarterPlace.com and any related subdomains, services, software and tools offered on or through TheSmarterPlace.com (collectively, the "Site"), you agree to these Terms and Conditions and any and all policies set forth on the Site (collectively the “Agreement”). As used in this Agreement, "TheSmarterPlace", "us" or "we" refers to TheSmarterPlace, Inc. PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND THESMARTERPLACE, AND INCLUDES TERMS SUCH AS LIMITATIONS OF LIABILITY, CHOICE OF FORUM FOR DISPUTES AND OTHER PROVISIONS THAT MAY LIMIT YOUR RIGHTS. TheSmarterPlace reserves the right to make changes to this Agreement at any time, and such changes will be effective immediately upon being posted on the Site. Each time you use the Site, you should review the current Agreement. You can determine when this Agreement was last revised by referring to the "LAST UPDATED" legend at the top of this Agreement. Your continued use of the Site will indicate your acceptance of the current Agreement.
USE OF SITE AND SERVICES AND RESTRICTIONS
The Site offers various services (“Services”) relating to your own residence or residences that you may own, manage or operate. Provided you have registered on the Site and paid all applicable fees for these Services, you may access and use the Site and Services on a non-exclusive, non-transferable basis, for your personal non-commercial use in accordance with all applicable laws and regulations, and in accordance with this Agreement. The Site and Services may not be used for any commercial purposes unless expressly agreed to by TheSmarterPlace in writing.
You shall not: (a) modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, transfer, or sell any portion of the Site or the Services; (b) reverse engineer, decompile, disassemble, or attempt to derive the source code for any Services, software, or feature offered on or through the Site; (c) other than for your use of the Site or Services as expressly permitted in this Agreement, access or attempt to access any systems or servers on which the Site is hosted or modify or alter the Site in any way; or (d) forge headers, create a false identity or otherwise manipulate identifiers in order to deceive others or disguise the origin of any User Content or other information transmitted to or via the Sites.
REGISTRATION FOR SERVICES AND YOUR ACCOUNT
You may be required to register with TheSmarterPlace in order to access certain Services or areas of the Site. With respect to any such registration, we may refuse to grant to you, and you may not use, a user name (or e–mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.
Your user name and password are for your personal use only. If you use the Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password, whether or not you authorized or were aware of them. TheSmarterPlace reserves the right to refuse service, terminate accounts, remove or edit content, or cancel or services in its sole discretion.
As part of your subscription fee, you are entitled to store up to 500MB of data with an Essential subscription level and up to 1GB of data with a Premium subscription level. TheSmarterPlace reserves the right to implement fees for storage above those levels at its own discretion. You will be notified if your account exceeds these storage levels and the fees associated with it prior to being invoiced.
You agree that TheSmarterPlace may periodically send you email to the email address you signed up with for various items such as suggested content, recommendations, reminders, newsletters, promotions, and other notices about the system and your content in the system.
If you are on a monthly payment subscription and elect to cancel your service, you will receive no refund for the month in which you canceled the service. There are no refunds for previous months that you were billed for the service. If you are on an annual prepaid subscription and elect to cancel your service, you will receive a refund for the pro-rated amount based on the number of days left in your annual service from the day we receive your cancelation request. There are no refunds for previous years that you were billed for the service.
ACCURACY OF INFORMATION PROVIDED BY YOU
You are responsible for providing accurate and complete information when you register your account, and to update that information promptly if there are any changes to it. You represent and warrant that any information, documents, photos, or other material that you provide in connection with your use of the Site is and shall remain true, accurate, and complete, and that you will maintain and update such information regularly. You agree that if any information, documents, photos, or other material you provide is false, inaccurate, obsolete or incomplete, we may terminate your use of the Site.
The Site will allow you to upload, post, and display documents relating to your residence such as appliance and equipment information, home improvement and repairs, invoices, user manuals, photos, mortgage-related documents, financial information, video, photos, text messages, other materials, items and user-generated content (collectively, “User Content"). The Site may also feature areas where you can interact with other users such as message boards, chat rooms and other interactive features (“Interactive Features”). You are solely responsible for your use of any Interactive Feature and you use them at your own risk.
If you submit any User Content or participate in an Interactive Feature within or in connection with the Site, you agree (a) not to upload, post or otherwise transmit any User Content that violates or infringes in any way upon the rights of others, including any copyright, trademark , trade secret, patent or other intellectual property rights, or any statements which may defame, harass, stalk or threaten others; (b) not to upload, post or otherwise transmit any User Content that is offensive or contains expressions of bigotry, racism, abusiveness, vulgarity or profanity; (c) not to upload, post or otherwise transmit any material that contains sexually explicit images, pornography or that is otherwise obscene; (d) not to upload, post or otherwise transmit any User Content that violates any law or engage in activity that would constitute a criminal offense or give rise to a civil liability; (e) not to upload, post or otherwise transmit, without TheSmarterPlace’s express prior approval, User Content which contains advertising or any solicitation with respect to products or services; (f) not to impersonate any person or entity; (g) not to invade or violate any person’s right of privacy or publicity, including, without limitation, harvesting or collecting personally-identifiable information; (g) not to upload, post or otherwise transmit any User Content, software or other materials which contain a virus or other harmful or disruptive component; (h) not to interfere with or disrupt the Site or the servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site; and (i) not to post any information that is false, misleading or inaccurate. Any User Content that violates any of the foregoing requirements may be edited, deleted or removed by TheSmarterPlace in it is sole discretion and without notice to users.
POSTING AND TRANSFER OF USER CONTENT
This Site may allow you publicly post User Content and to transfer such User Content to another user or to any person that has purchased your residence. You represent and warrant that you have full right, power and authority to post and transfer the User Content and that doing so will not violate the rights or interests of an third party. TheSmarterPlace is not responsible for any loss, damage, mutilation, alteration, theft, deletion or modification of any User Content. YOU SHOULD ALWAYS MAINTAIN A BACKUP COPY OF YOUR USER CONTENT.
TheSmarterPlace reserves the right, without notice and in its sole discretion, to terminate your account or your use of the Site, and to block or prevent future access to and use of the Site if you violate any terms of this Agreement. Upon any such termination, your right to use the Site will immediately cease. You agree that any termination of your access to or use of the Site may be effected without prior notice, and that we may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that we shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files, and we shall not be required to make such information or files available to you after any such termination. Upon termination, all provisions of this Agreement which are by their nature intended to survive termination, all representations and warranties, limitation of liabilities, and all indemnities shall survive such termination.
COMMENTS / FEEDBACK
We welcome your comments and feedback regarding our Site, our products and our services. We do not, however, accept confidential or proprietary information. Accordingly, all comments, feedback, ideas, suggestions, materials, information, product designs or concepts, and other submissions disclosed, submitted or offered to TheSmarterPlace using this Site or otherwise (collectively, “Comments”) are not confidential and will become and remain TheSmarterPlace’s property. The disclosure, submission or offer of any Comments will constitute an assignment to TheSmarterPlace of all worldwide rights, titles and interests and goodwill in the Comments without payment of any compensation. Comments submitted by you must not violate any right of any third party, and must not contain any libelous, abusive, obscene or otherwise unlawful material.
INTELLECTUAL PROPERTY RIGHTS
All content included on the Site, such as text, graphics, logos, images, audio clips, video, data, software and other material (collectively "Content"), is owned or licensed property of TheSmarterPlace or its software and content suppliers and is protected by copyright, trademark, patent or other proprietary rights. The collection, arrangement, and assembly of all Content on the Site is the exclusive property of TheSmarterPlce and protected by international copyright laws.
TheSmarterPlace™, the TheSmarterPlace logo are trademarks of TheSmarterPlace, Inc. Unauthorized use is strictly prohibited. Other trademarks used herein are the trademarks of their respective owners and are not intended to indicate any endorsement, sponsorship or affiliated with TheSmarterPlace.
TheSmarterPlace and its suppliers and licensors expressly reserve all intellectual property rights in all Content. Access to the Site does not confer and shall not be considered as conferring upon anyone any license under any of TheSmarterPlace’s or any third party’s intellectual property rights.
LINKS TO THIRD PARTIES’ WEBSITES
The Site may contain links to websites of third parties (“Third Party Sites”). TheSmarterPlace is not responsible for and has no liability for the functionality, actions, inactions, privacy settings, privacy policies, terms and conditions and content of any such Third Party Site. Before enabling any sharing functions of the Site to communicate with any such website, TheSmarterPlace strongly recommends that you review and understand the terms and conditions, privacy policies, settings and information sharing functions of each such Third Party Site. The links and interactive functionality for third party sites on the Site in no way constitute an endorsement by TheSmarterPlace of these Third Party Sites. Other sites may link to the Site with or without our authorization, and we may block any links to or from the Site. YOUR USE OF THIRD PARTY SITES AND RESOURCES IS AT YOUR OWN RISK.
DISCLAIMERS OF WARRANTIES -- GENERAL
While TheSmarterPlace attempts to ensure your access and use of the Site is safe, TheSmarterPlace cannot and does not represent or warrant that the Site or its server will be error–free, uninterrupted, free from unauthorized access (including third party hackers or denial of service attacks) or otherwise meet your requirements. TheSmarterPlace further disclaims any and all warranties, express or implied, regarding the User Content.
THE SITE AND ALL INFORMATION, CONTENT, MATERIALS AND OTHER PRODUCTS (INCLUDING SOFTWARE), SERVICES AND USER CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE PROVIDED BY THESMARTERPLACE ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. THESMARTERPLACE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, THE ACCURACY OR COMPLETENESS OF CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE), SERVICES OR USER CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE OR ITS SERVERS, THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT EMAILS SENT FROM THESMARTERPLACE ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THESMARTERPLACE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE OR FROM ANY INFORMATION, CONTENT, MATERIALS PRODUCTS (INCLUDING SOFTWARE), SERVICES OR USER CONTENT OF ANY KIND ARISING FROM THE USE OF THE SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULL EXTENT PERMITTED BY LAW, THESMARTERPLACE DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SITE AND ITS CONTENTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
CERTAIN PROVIDERS OF PRODUCTS MAY SEPARATELY PROVIDE LIMITED REPRESENTATIONS AND/OR WARRANTIES REGARDING THEIR PRODUCTS. THIS DISCLAIMER DOES NOT APPLY TO SUCH PRODUCT WARRANTIES, BUT YOU WOULD LOOK SOLELY TO SUCH THIRD PARTIES WITH RESPECT TO ANY SUCH REPRESENTATION AND WARRANTIES.
On the Site, we may display names, marks, products, advertisements or services of third parties, pop–up texts, or links to third party sites. IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE SITE, ANY PRODUCTS, SERVICES, OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE. If you decide to link to any such third party sites, you do so entirely at your own risk.
The Site is controlled and operated by TheSmarterPlace from Switzerland, and is not intended to subject TheSmarterPlace to the laws or jurisdiction of any state, country or territory other than that of Switzerland. TheSmarterPlace does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than Switzerland. In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL THESMARTERPLACE OR ANY OF ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF THESMARTERPLACE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY CONTENT ON THE SITE, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
REPRESENTATION AND WARRANTIES/INDEMNIFICATION AND DEFENSE OF THESMARTERPLACE
You represent and warrant that your User Content is accurate and not misleading, does not and will not violate the IP Rights or any other rights of any third party, and does not violate this Agreement. As a condition of the use of the Site, you agree to defend, indemnify and hold harmless TheSmarterPlace, and its respective employees, directors, officers, agents, vendors and suppliers from and against any liabilities, losses, investigations or inquiries, claims, suits, damages, costs and expenses (including without limitation, reasonable attorneys’ fees and expenses) (each, a "Claim") arising out of or otherwise relating to your use of the Site or the User Content.
ENFORCEMENT OF THIS AGREEMENT
BY ACCESSING AND USING THE SITE AND THE SERVICES, YOU AGREE THAT YOUR ACCESS TO AND USE OF THE SITE AND SERVICES IS SUBJECT TO THIS AGREEMENT, AS WELL AS ALL APPLICABLE LAWS, AS GOVERNED AND INTERPRETED PURSUANT TO THE LAWS OF SWITZERLAND. The laws of Switzerland, without regard to its choice–of–law principles, govern all matters arising out of or related to this Agreement, including the sale of any products. You agree that the exclusive forum and venue for any legal action arising out of or related to this Agreement, including the sale or license of any products, shall be the federal or state courts of Zurich, Switzerland and you submit to the personal jurisdiction and venue of those courts.
You consent to receive electronic communications from TheSmarterPlace either in the form of email sent to you at the email address listed on your account or by communications posted on the Sites. You acknowledge and agree that any electronic communication in the form of such email or posting on the Sites shall satisfy any legal requirement that such communication be in writing.
COPYRIGHT AND TRADEMARK INFRINGEMENT
TheSmarterPlace respects the intellectual property rights of others, and we ask you to do the same. TheSmarterPlace may, in appropriate circumstances and at our discretion, terminate service and/or access to the Sites for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Sites, please provide TheSmarterPlace’s designated agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. §512 ("DMCA"):
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Sites, and information reasonably sufficient to permit TheSmarterPlace to locate the material. Information reasonably sufficient to permit TheSmarterPlace to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please also note that for copyright infringements under Section 512(f) of the U.S. Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
This Agreement, including policies incorporated herein, constitute the entire agreement between you and TheSmarterPlace with respect to the Site and the Services. This Agreement supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and TheSmarterPlace with respect to the Site. No provision of this Agreement shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No waiver will be applicable other than in the specific instance in which it is given. No failure to exercise, partial exercise of, or delay in exercising any right or remedy, or failure to require the satisfaction of any condition under, this Agreement shall operate as a waiver or estoppel of any right, remedy or condition. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. Nothing in this Agreement creates a relationship of agent and principal, partners, joint venturers or employer–employee between the parties, and no act or obligation of either party will in any way bind the other. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may also provide notice of changes to this Agreement by displaying such notices or by providing links to such notices. You agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. We will not be responsible for failure to fulfill any obligation due to causes beyond our control.
If you have any concerns about TheSmarterPlace or your use of the Site, please contact us with a detailed description, and we will try to resolve it:
Telephone: +41 (0)44 7901714