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Effective Date: February 14, 2014
1. Materials Made Available on the Sites.
The Sites may contain information, software, documentation, data, services, logos, trademarks, trade dress, artwork, text, video, audio, video, pictures, content and other materials (collectively, “Materials”). You may download Materials which provide information on Smarsh products and services (such as white papers, press releases, datasheets, and product documentation), which are made available by Smarsh for download from the Site. Smarsh retains all rights and title to such Materials, but grants you the limited right to use such Materials for your personal, non-commercial and informational purpose; provided that, you do not (a) distribute any such Materials on any networked computer or broadcast such Materials in any media; (b) remove any proprietary notice language from such Materials; (c) make any modification to such Materials; or (d) make any representation or warranty relating to such Materials. Except as expressly provided above, or as specifically permitted elsewhere on the Sites, you may not use, reproduce, republish, post, transmit or distribute any Materials.
Smarsh, and/or its licensors or suppliers own the Materials, as well as the design, structure, selection, coordination, expression and arrangement of such Materials, and all intellectual property rights therein and thereto. The Smarsh logos, trademarks, service marks or other business names are the trademarks or registered trademarks of Smarsh Inc. or its subsidiaries in the United States and other jurisdictions (“Trademarks”). All other company and product names may be trademarks or registered trademarks of their respective companies.The Materials and the Trademarks are protected by law, including copyright, trademark and other intellectual property laws, as well as unfair competition laws and international treaties. Other than the limited rights granted in these Terms nothing on the Sites shall be construed as conferring to you any license in any intellectual property rights, whether by implication, estoppel or otherwise.
You acknowledge that the Sites have been developed, compiled, prepared, revised, selected and arranged by Smarsh and others through the expenditure of substantial time, effort, and money and constitute valuable intellectual property and trade secrets of Smarsh and others. The Sites, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof, is copyrighted as a collective work under the United States and other copyright laws, and is the property of Smarsh. The collective work includes works that are licensed to Smarsh.
2. Use of the Sites
With respect to your use of the Sites you may not, and agree not to: (a) use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process to access, acquire, copy or monitor the Sites or Material; (b) reproduce or circumvent the navigational structure or presentation of the Sites or Material to obtain, or attempt to obtain, any materials, documents or information through any means not purposely made available to you through the Site; (c) attempt to gain unauthorized access (by hacking, password “mining” or any other means) to (i) any portion or feature of the Sites, (ii) any other system or network connected to the Sites, (iii) any Smarsh server, or (iv) any of the services offered on or through the Sites; (d) probe, scan or test the vulnerability of the Sites or any network connected to the Sites; (e) breach the security or authentication measures on the Sites or any network or system connected to the Sites; (f) exploit the Sites, or any service or information made available through the Sites; or (g) use any device, software or routine in order to interfere, or attempt to interfere, with (i) the proper working of the Sites, (ii) any transaction conducted on the Sites, or (iii) any third party’s use of the Sites; (h) use the Sites or Material for any purpose that is unlawful or otherwise prohibited by these; or (i) solicit the performance of any illegal activity or other activity which infringes the rights of Smarsh or third parties.
Access to the Sites may be monitored by Smarsh, including to verify your compliance with these Terms.
3. Your Communications to Smarsh via the Sites.
You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Smarsh on or through the Sites. You may not pretend that you are any other individual or entity, or misrepresent your authority to represent any entity.
If you provide any feedback, recommendations for improvements or features of the Sites or any Smarsh products or services, implementation of that feedback or recommendation is owned by Smarsh and may become part of our Sites, products and services without compensation to you.
4. Links to Third Party Websites.
Links to third party websites on the Sites are provided as a convenience to you. Such third party websites are not owned or operated by Smarsh, and Smarsh does not assume any responsibility or liability these third party websites or for any communications or materials available through such third party websites. All third party websites have separate privacy and data collection policies and practices, independent of Smarsh. Smarsh has no responsibility or liability for these independent policies or actions and is not responsible for the privacy practices or the content of External Sites. Links third party websites do not imply that Smarsh sponsors, endorses, or that Smarsh is affiliated or associated with the third party.
5. Disclaimer of Liability.
Smarsh makes no warranties or representations about the accuracy or completeness of the Sites or the Sites’ Materials. Smarsh does not endorse and is not responsible for the accuracy or reliability of any opinion, advice or statement made through the Sites by any party other than Smarsh. Smarsh is not responsible for technical problems that may hinder the efficacy of a transaction on the Sites.
THE SITES AND THE MATERIALS, INFORMATION, SERVICES, AND PRODUCTS IN THE SITES, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SMARSH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SMARSH DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMARSH DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. Limitation of Liability.
IN NO EVENT WILL SMARSH BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL, DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF SMARSH HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM THE SITES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Smarsh, its officers, directors, employees, agents, licensors, suppliers, successors and assigns (collectively the “Provider”) from and against all liabilities, losses, expenses, damages and costs, including reasonable attorneys’ fees, whether or not a lawsuit or other proceeding is filed, arising out of or relating to: (i) any violation of these Terms; (ii) your use of the Sites or Materials, or (iii) any transaction or activity related to your use of the Sites. In the event you fail to promptly indemnify and defend such claims or pay the expenses of the Provider, as provided above, the Provider has the right to defend itself, and in that case, you shall reimburse the Provider for all of its reasonable attorney’s fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of the Provider’s written request.
8. Digital Millennium Copyright Act. If you believe the Sites include materials which may infringe your rights, please provide notice to email@example.com or Attn: Legal, Smarsh Inc., 851 SW 6th Ave, Suite 800, Portland, OR 97204. Your notice must include all of the below information:
(a) a physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright you allege is being infringed;
(b) a description of the copyrighted work that you allege is being infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(c) a description of the allegedly infringing material and information sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or an e-mail address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, or its agent, or the law; and
(f) a statement by you that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed.
Smarsh will process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws.
9. Governing Law.
Your use of the Sites is governed in all respects by the laws of the State of Oregon without regard to choice of law provisions. You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the Sites (including but not limited to the purchase of Smarsh products) will be in the state or federal courts located in Multnomah County, Oregon.
10. Statute of Limitations.
Any cause of action or claim you may have with respect to the Sites must be commenced within one (1) year after the claim or cause of action arises.
11. General Terms.
Smarsh and its affiliates are not liable for damages as a result of any delay or other failure of performance due to causes beyond its reasonable control including, without limitation, acts of God, acts of customer or any of its representatives, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, terrorism, telecommunications interruptions or computer viruses.