1. Your
Acceptance
Welcome to the Terms
of Use for the Smmcola owned websites and any services provided by Smmcola (collectively
referred to as the “Platform”). This is an agreement (“Agreement”) between Smmcola
, Inc. (“Smmcola "), the owner and operator of the
Platform and you (“you”, “your” or “user(s)”), a user of the Platform. If you
wish to sell any Seller Services (defined below), you’ll have to agree to
additional terms which apply to Sellers (“Seller”).
Throughout this Agreement, the words “Smmcola ,” “us,” “we,” and “our,” refer to our
company, Smmcola , Inc., as is
appropriate in the context of the use of the words.
By clicking “I agree” or accessing the Platform you agree to
be bound by this Agreement and the Privacy Policy. We may amend this Agreement
at any time and may notify you if we do so. PLEASE BE AWARE THAT THERE ARE
ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.
Portions of the
Platform may require you to create a login or sign-up for an account. You must
fully complete the registration process by providing us with your current,
complete, truthful, and accurate information as prompted by the applicable
registration form. Where required, Smmcola may also assign you a username and
password. You are entirely responsible for maintaining the confidentiality of
your password and account and for any and all activities that occur under your
account. You agree to notify Smmcola immediately of any unauthorized use of
your account or any other breach of security. Smmcola will not be liable for
any losses you incur as a result of someone else using your password or
account, either with or without your knowledge. However, you could be held
liable for losses incurred by Smmcola or another party due to someone else
using your account or password. You may not use anyone else's account at any
time, without the permission of the account holder. Companies may register via
the Platform but may only have one user account. If you are registering on
behalf of your company, you represent and warrant that you are authorized by
your company to create an account on your company’s behalf. Smmcola has the
sole discretion in granting or denying any accounts.
Please read Smmcola ’s Privacy Policy for more information
regarding the collection and use of your information.
After properly registering
for the Platform, we grant you a personal, non-exclusive, fully revocable,
non-assignable, non-transferable, limited right to use and access our Platform
as permitted by us. As a user, you do not receive any ownership interest in the
Platform; you merely receive the right to use and access the Platform as
provided by us. All rights not explicitly granted are reserved for Smmcola . You agree to abide by the following
restrictions listed below:
Please be aware that this is not an
all-encompassing list of restrictions, if you breach any of these restrictions,
we may revoke your license to use our Platform, at our discretion.
Additionally, we may revoke or restrict your access to our Platform if we
believe that your actions may harm or have harmed Smmcola or the Platform
itself. Failure by us to revoke your access does not act as a waiver of your
conduct.
Your ability to submit
or transmit any information through the Platform, including but not limited to
text, audio messages, videos, photos, images or any other information will be
referred to as “User Content” throughout this Agreement. All User Content you
submit to the Platform will be owned by you. Please be aware that we are not
required to host, display, migrate, or distribute any of your User Content and
we may refuse to accept or transmit any User Content. You agree that you are
solely responsible for any User Content submitted and you release us from any
liability associated with any User Content submitted. You understand that we
cannot guarantee the absolute safety and security of any such User Content. Any
User Content found to be in violation of this Agreement or that we determine to
be harmful to the Platform may be modified, edited, or removed at our
discretion. The Smmcola does not endorse and may not verify, monitor, or
restrict any of its users or any User Content submitted. You agree that any
User Content or any other information may be inaccurate, unsubstantiated or
possibly even incorrect.
When submitting any User Content to our Platform you
represent and warrant that you own all rights to the User Content and you have
paid for or otherwise have permission to use any User Content submitted.
When you submit any User Content to us, you grant the Smmcola
, its partners, affiliates, users,
representatives and assigns a non-exclusive, fully-paid, royalty-free,
irrevocable, world-wide, universal, transferable, assignable license to
display, publicly perform, distribute, store, broadcast, transmit, reproduce,
modify, prepare derivative works and otherwise use and reuse all or part of
your User Content. It is important for you to grant us this license so that we
may transmit your User Content to other users through our Platform.
Additionally, although you own all User Content submitted by you, we own all
layouts, arrangement, metadata and images that are used to render your User
Content through our Platform.
Although we will
attempt to provide continuous Platform availability to you, we do not guarantee
that the Platform will always be available, work, or be accessible at any
particular time. We make no uptime guarantees. We reserve the right to alter,
modify, update, or remove our Platform at any time. We may conduct such
modifications to our Platform for security reasons, intellectual property,
legal reasons, or various other reasons at our discretion, and we are not
required to explain such modifications. For example, we may provide updates to
fix security flaws, or to respond to legal demands. Please note that this is a
non-binding illustration of how we might exercise our rights under this
section, and nothing in this section obligates us to take measures to update
the Platform for security, legal, or other reasons.
When accessing or
using our Platform, you are solely responsible for your use and for any use of
the Smmcola Platform made using your account. You agree to abide by the
following rules of conduct:
If you are discovered to be undertaking any of
the aforementioned actions or if we believe that any of your actions may harm Smmcola
’s Platform or business interests your
privileges to use our Platform may at our sole discretion be terminated,
revoked, or suspended. Generally, we will provide an explanation for any
suspension or termination of your use of any of our Platform, but Smmcola reserves
the right to suspend or terminate any account at any time without notice or
explanation.
SMMCOLA EXPRESSLY
DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS OR INJURY
ARISING OUT OF: THE ACTIVITIES OF ANY SELLERS AND ANY LOSS OR INJURY ARISING
OUT OF YOUR PURCHASE OR USE OF ANY SELLER SERVICES. YOU HEREBY ACKNOWLEDGE AND
AGREE THAT SMMCOLA MAY PROVIDE INFORMATION ABOUT A SELLER, BASED ON LOCATION,
FEATURES OR RELEVANCY. HOWEVER, SUCH INFORMATION IS BASED SOLELY ON DATA THAT
IS SUBMITTED BY THE SELLER, AND SMMCOLA PROVIDES SUCH INFORMATION SOLELY FOR
THE CONVENIENCE OF ALL USERS AND IS NOT AN INTRODUCTION, ENDORSEMENT, OR
RECOMMENDATION BY SMMCOLA . All Seller
Services are sold on an “as is” basis. User releases Smmcola from any liability
associated with user’s use of the Platform or purchase of any Seller Services.
Smmcola is not a party to any contracts between users and
Sellers. Additionally, Smmcola does not control or direct the Seller or the
Seller Services, including but not limited to delivery date, performance, or
quality. Smmcola does not introduce users to Sellers. Smmcola merely makes the
Platform available to enable Sellers to identify and determine the suitability
of users for themselves and to enable users to identify and determine the
suitability of Sellers for themselves. Any opinions, advice, or information
expressed by any Seller are those of the individual and the individual alone
and they do not reflect the opinions of Smmcola . Smmcola does not direct, is not an employer,
has no control over, makes no representations, and does not guarantee the
quality, safety or legality of any Seller Services provided by Seller.
In order to purchase
any Seller Services user may be required to pay a fee as listed on the Platform
by the Seller. Seller shall receive all such fees minus any fees deducted by Smmcola
. If you wish to purchase anything from
our Platform you agree that we may charge your payment method on file and you
agree to pay the fee listed on the Platform. Your credit card information or
other payment method will be processed and stored by us. All payment
information is hosted on PCI/DSS compliant services. Although you may have a
balance in your account please be aware that Smmcola does not provide banking
or escrow services and you may not use Smmcola for such purposes.
The Seller Services
are not confirmed until user receives an order confirmation (the “Order”) from
the Seller. All Orders are subject to additional terms and conditions of the
Seller as listed by the Seller. Seller may list dates and timelines for the
Seller Services to be provided for each Order or other relevant information. Smmcola
is not responsible for any Orders or the delivery of any Seller Services.
At Smmcola we want you
to be satisfied with any Seller Services offered via the Platform. All Orders
made by a user shall only be refunded if such Order has not been fulfilled by a
Seller. Before any Order can be refunded for any Seller Services, the user must
first attempt to contact the Seller. If the Seller fails to respond or does not
deliver the Order as promised to the user, the user may then initiate a refund
request by contacting Smmcola . Please
be aware that refunds can only be given for unfulfilled orders and no refunds
will be issued for any other reason. All refunds are issued at the sole
discretion of Smmcola . If you wish to
request a refund or have an issue with any account billing, please contact us a
support@smmcola .com.
Users and Sellers
acknowledge and agree that in order for Smmcola to make the Platform available,
it must receive fees for all Seller Services and Orders transacted. In
consideration for making the Platform available for users and Sellers, you
agree that for a period of 24 months from the time you identify or are
identified by any party through the Platform , you must use the Platform as
your exclusive method to request, make, and receive all payments for any Seller
Services or Orders directly or indirectly provided to or received from that
party or arising out of your relationship with that party. Users may only opt
out of the non-circumvention by paying an opt out fee of $1000 dollars or 15%
of the total Orders purchased from a Seller in the past calendar year,
whichever is greater. You agree to notify Smmcola immediately if another person
improperly contacts you or suggests making or receiving payments outside of the
Platform.
In the event of a
dispute between Seller and user, Seller and user agree to attempt to settle the
dispute amicably and in good faith by contacting each other and attempting
resolve such a dispute. If such dispute cannot be settled, Seller or user may
contact Smmcola . Smmcola , at its discretion, may assist in settling
the dispute. In the event that Smmcola assists in any dispute resolution,
Seller and user agree to accept such resolution as resolved, binding, and
final. This section does not obligate Smmcola to settle disputes between any
users and any Sellers and all users agree that Smmcola is not a party to any
such disputes.
You may cancel your
account at any time via your Smmcola dashboard or contacting us at support@smmcola
.com. Please be aware that upon termination
of your account, access to portions of our Platform may be become immediately
disabled and any Seller Services or Orders not concluded may be terminated.
Upon termination you will not be entitled to any refunds or proration of any
fees paid except as stated in this Agreement. We may terminate your membership
if we determine that: (1) you have violated any applicable laws while using our
Platform; (2) if you have violated this Agreement or any other of our Platform
policies; (3) if your account has remained inactive for an extended period of
time; or (4) if we believe that any of your actions may harm Smmcola , at our sole decision or discretion. In the
event of termination, we will strive to provide you with a timely explanation;
however, we are not required to do so.
Depending on the laws
of your jurisdiction you may be taxed for any payments or purchases. Therefore,
at the time of payment we may collect all applicable taxes related to your use
of the Platform. In the event that we do not collect the applicable taxes, you
agree that you are still responsible for any applicable taxes. Although no
taxes may be collected by us you agree that you will pay any applicable taxes
or fees to the tax agencies having jurisdiction over you. In the event we do
not collect the relevant taxes owed by you, you agree that we are not
responsible for collecting, transmitting, or advising on taxes, duties, or
other levies by the government regarding your payments.
We attempt to protect
our Sellers from chargebacks by employing different fraud detection methods. In
the event of a chargeback we will notify the Seller immediately and the Order
shall be immediately cancelled. If we believe that you have participated in a
fraudulent chargeback we will pursue our claims against you to the fullest
extent allowed by law. Please be aware that Sellers will not be compensated for
any lost profits or time due to a chargeback by user. In the event that we
believe that a user has submitted a fraudulent chargeback, we will forward your
information to the applicable law enforcement agency and your fraudulent
chargeback may result in either a civil fine or jail time.
Smmcola or any of its
employees do not accept or consider unsolicited ideas, including but not
limited to ideas relating to processes, technologies, product enhancements, or
product names. Please do not submit any unsolicited ideas, content, artwork,
suggestions, or other works (“Submissions”) in any form to Smmcola . The sole purpose of this policy is to avoid
potential misunderstandings or disputes when Smmcola ’s products might seem similar to ideas you
submitted to Smmcola . If, despite our
request that you not send us your ideas, you agree to the following: (1) your
Submissions and their contents will automatically become the property of Smmcola
, without any compensation to you; (2) Smmcola
may use or redistribute the Submissions and their contents for any purpose and
in any way; (3) there is no obligation for Smmcola to review the Submission; and
(4) there is no obligation to keep any Submissions confidential.
The name “Smmcola ,” the design of the Smmcola Platform along
with Smmcola created text, writings, images, templates, scripts, graphics,
interactive features and the trademarks, marks and logos contained therein
("Marks"), are owned by or licensed to Smmcola . The Marks are subject to copyright and other
intellectual property rights under US laws and international conventions. Smmcola
reserves all rights not expressly granted in and to the Platform. You agree to
not engage in the use, copying, or distribution of the Marks or anything else
contained within the Platform unless we have given you express written
permission.
THE PLATFORM AND ALL
SELLER SERVICES SOLD IS PROVIDED ON AN "AS IS", "AS
AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT
PERMISSIBLE BY LAW, NEITHER SMMCOLA ,
NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY
REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS
OR IMPLIED, AS TO: (A) THE PLATFORM; (B) ANY INFORMATION PROVIDED VIA THE
PLATFORM; (C) ANY SELLER SERVICES AVAILBLE OR (D) SECURITY ASSOCIATED WITH THE
TRANSMISSION OF INFORMATION TO SMMCOLA OR VIA THE PLATFORM. IN ADDITION, WE
DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND
FREEDOM FROM COMPUTER VIRUS.
SMMCOLA DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL
BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE
PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY
HARMFUL COMPONENTS. SMMCOLA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES
THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM ARE ACCURATE,
COMPLETE, OR USEFUL. SMMCOLA DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS
LAWFUL IN ANY PARTICULAR JURISDICTION, AND SMMCOLA SPECIFICALLY DISCLAIMS ANY
SUCH WARRANTIES.
IN NO EVENT SHALL SMMCOLA
, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR
AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM (I) YOUR USE OR
INABILITY TO USE THE PLATFORM OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND
WITHIN THE PLATFORM, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE
WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM OR FROM ANY
SELLER SERVICES OR ORDERS, (III) ANY INTERRUPTION,MISINFORMATION, INCOMPLETE
INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU, (IV)
ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR
THROUGH OUR PLATFORM VIA A THIRD PARTY, (V) ANY FAILURES OR DISRUPTIONS WHETHER
INTENTIONAL OR UNINTENTIONAL, (VI) ANY ACTION TAKEN IN CONNECTION WITH
COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS OR (VII) ANY POTENTIAL OR
ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR WHILE USING THE
PLATFORM. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST
EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN JURISDICTIONS THAT
ALLOW A LIMITATION ON LIABILTY, YOU AGREE THAT OUR LIABILITY TO YOU IS NO MORE
THAN THE AMOUNT YOU PAID IN THE PAST SIX MONTHS FOR SERVICES OR ONE-HUNDRED US
DOLLARS, WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION
OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION
OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT
VARY BETWEEN JURISDICTIONS. Specifically, in those jurisdictions not allowed,
we do not disclaim liability for: (a) death or personal injury caused by Smmcola
’s negligence or that of any of its
officers, employees or agents; (b) fraudulent misrepresentation; or (c) any
liability which it is not lawful to exclude either now or in the future. The
foregoing limitations on liability and any other limitations of liability set
forth herein are not applicable to residents of New Jersey. With respect
to residents of New Jersey, Smmcola shall not be liable for any damages arising
out of your access to or use of the Platform, unless such damages are the
result of our negligent or reckless acts or omissions; provided, however, that
we shall not be liable for consequential, indirect or punitive damages.
You agree to defend,
indemnify and hold harmless Smmcola ,
its officers, directors, employees and agents, from and against any and all
claims, damages, obligations, losses, liabilities, costs or debt, and expenses
(including but not limited to attorney's fees) arising from:
This defense and indemnification obligation
will survive this Agreement and your use of the Smmcola Platform. You also
agree that you have a duty to defend us against such claims and we may require
you to pay for an attorney(s) of our choice in such cases. You agree that this
indemnity extends to requiring you to pay for our reasonable attorneys’ fees,
court costs, and disbursements. In the event of a claim such as one described
in this paragraph, we may elect to settle with the party/parties making the
claim and you shall be liable for the damages as though we had proceeded with a
trial.
Smmcola and its
Platform may only be used by persons 18 years and older. If you are under 18
please stop using our Platform and please do not submit any information to us.
If you believe that
any User Content or other content found on the Smmcola Platform has infringed
on your copyrights or other intellectual property rights, please consult the Smmcola
Copyright and Intellectual Property Policy (“Policy”). The Policy contains
information regarding the notification procedures required by us to remove any
infringing material or content from our Platform. You must agree to abide by
the Policy before using or accessing the Platform.
This Agreement shall
be governed by the laws in force in the state of North Carolina. The offer and
acceptance of this contract is deemed to have occurred in North Carolina.
You agree that any
dispute relating in any way to your use of the Platform shall be submitted to
confidential arbitration in Henderson County, NC. Arbitration under this
Agreement shall be conducted pursuant to the applicable rules (“Rules”) then
prevailing at the American Arbitration Association. Arbitration shall be
conducted by one (1) arbitrator as selected pursuant to the Rules; the
arbitrator's award shall be final and binding and may be entered as a judgment
in any court of competent jurisdiction. Each party shall be responsible for
their own arbitration fees and costs. To the fullest extent permitted by
applicable law, no arbitration under this Agreement shall be joined to an
arbitration involving any other party subject to this Agreement, whether
through class action proceedings or otherwise. You agree that regardless of any
statute or law to the contrary, any claim or cause of action arising out of,
related to or connected with the use of the Platform or this Agreement must be
filed within one (1) year after such claim or cause of action arose or be
forever banned (the foregoing time limitation is not applicable to residents of
New Jersey). In the event that the law does not permit the abovementioned
dispute to be resolved through arbitration, you agree that any actions shall be
brought solely in a court of competent jurisdiction located within or otherwise
nearest to Henderson County, NC.
You and Smmcola agree
that any proceedings to resolve or litigate any dispute whether through a court
of law or arbitration shall be solely conducted on an individual basis. You
agree that you will not seek to have any dispute heard as a class action,
representative action, collective action, or private attorney general action.
The foregoing class action waiver does not apply to residents of New Jersey.
You agree that we are
not responsible to you for anything that we may otherwise be responsible for,
if it is the result of events beyond our control, including, but not limited
to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages
(including lawful and unlawful strikes), embargoes, postal disruption,
communication disruption, failure or shortage of infrastructure, shortage of
materials, or any other event beyond our control.
In the event that a
provision of this Agreement is found to be unlawful, conflicting with another
provision of the Agreement, or otherwise unenforceable, the Agreement will
remain in force as though it had been entered into without that unenforceable
provision being included in it. If two or more provisions of this Agreement or
any other agreement you may have with Smmcola are deemed to conflict with each
other’s operation, you agree that Smmcola shall have the sole right to elect
which provision remains in force.
We reserve all rights
permitted to us under this Agreement as well as under the provisions of any
applicable law. Our non-enforcement of any particular provision or provisions
of this Agreement or any applicable law should not be construed as our waiver
of the right to enforce that same provision under the same or different
circumstances at any time in the future.
All provisions of this
Agreement which by their nature should survive termination shall survive
termination, including, without limitation, ownership provisions, warranty
disclaimers, indemnity and limitations of liability.
You may not assign
your rights and/or obligations under this Agreement to any other party without
our prior written consent. We may assign our rights and/or obligations under
this Agreement to any other party at our discretion.
This Agreement along
with the Privacy Policy, the Responsible Listing Guidelines, and any other
supporting agreements provided by Smmcola constitutes the complete and
exclusive understanding and agreement between the parties regarding the subject
matter herein and supersedes all prior or contemporaneous agreements or
understandings written or oral, relating to its subject matter.
We may amend this
Agreement from time to time. When we amend this Agreement, we will update this
page and indicate the date that it was last modified or we may email you. You
may refuse to agree to the amendments, but if you do, you must immediately
cease using our Platform.
Pursuant to California
Civil Code Section 1789.3, any questions about pricing, complaints, or
inquiries about Smmcola must be sent to our agent for notice to: support@smmcola
.com
Lastly, California users are also entitled to the following
specific consumer rights notice: The Complaint Assistance Unit of the Division of
Consumer Services of the California Department of Consumer Affairs may be
contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by
telephone at (916) 445-1254 or (800) 952-5210.
The communications
between you and Smmcola use electronic means, whether you visit the Platform or
send Smmcola e-mails, or whether Smmcola posts notices on the Platform or
communicates with you via e-mail. For contractual purposes, you (1) consent to
receive communications from Smmcola in an electronic form; and (2) agree that
all terms, conditions, agreements, notices, disclosures, and other
communications that Smmcola provides to you electronically satisfy any legal
requirement that such communications would satisfy if it were to be in writing.
The foregoing does not affect your statutory rights.
The following sections
36-46 apply to any Sellers who wish to use the Platform and wish to sell Seller
Services via the Platform. Any Sellers wishing to use the Platform shall be
required to sign up and create an account and shall be bound by the additional
terms listed below.
In order for Sellers
to offer Seller Services you must create a Seller account. You must fully
complete the registration process by providing us with your current, complete,
truthful, and accurate information as prompted by the applicable registration
form. Where required, Smmcola may also assign you a username and password. You
are entirely responsible for maintaining the confidentiality of your password
and account and for any and all activities that occur under your account. You
agree to notify Smmcola immediately of any unauthorized use of your account or
any other breach of security. Smmcola will not be liable for any losses you
incur as a result of someone else using your password or account, either with
or without your knowledge. However, you could be held liable for losses
incurred by Smmcola or another party due to someone else using your account or
password. You may not use anyone else's account at any time. Sellers may only
register for one account per person and may not register as a company or group
collaboration. Smmcola has the sole discretion in granting or denying any
accounts.
Seller providing any
Seller Services represents and warrants the following: (1) Seller owns or has
properly licensed all Seller Services provided to any users of the Platform;
(2) the Seller Services will not infringe on any copyright, moral right,
trademark or other intellectual property right and will not violate any right
of privacy or right of publicity; (3) the Seller Services offered do not
violate any US state or federal laws or any third party agreements; (4) Seller
has not entered into any previous agreements which would limit its ability to
undertake or perform this Agreement; and (5) Seller will in good faith abide by
this Agreement and all other restrictions and rules in place for any Seller
Services sold on the Platform.
We may terminate or
suspend your account if we determine that: (1) you have violated any applicable
laws while using our Platform; (2) If you have violated this Agreement or any
other of our Platform policies; (3) if we believe your actions while using the
Platform have harmed or will harm a third party, or (4) if we believe that any
of your actions may harm Smmcola , at
our sole decision or discretion. In the event of termination, we will strive to
provide you with a timely explanation; however, we are not required to do so.
As a Seller if you wish to terminate your Seller account please notify us or
use your account dashboard to terminate the account. Please be aware that once
your account is terminated, all access and information including Seller
Services in your existing account may become immediately inaccessible or
deleted. Failure to terminate your account for any reason does not act as a
waiver of your conduct.
As a Seller you may
offer any services as allowed by Smmcola including but not limited SEO search
services, collectively referred to as “Seller Services”. Please be aware that
we are not required to host, display, migrate, or distribute any of your Seller
Services and we may refuse to accept or transmit any Seller Services. You agree
that you are solely responsible for any User Content contained within the
Seller Services submitted and you release us from any liability associated with
any Seller Services submitted. You understand that we cannot guarantee the
absolute safety and security of any such Seller Services. Any Seller Services
found to be in violation of this Agreement or that we determine to be harmful
to the Service may be modified or removed at our discretion. You must abide by
all Seller Services rules as outlined below. When you submit any Seller
Services to us, you grant Smmcola the same licensing rights as listed in the
Agreement for User Content.
When offering any
Seller Services you agree to abide by all rules and regulations related to such
Seller Services. Additionally, Seller agrees that all Seller Services may not:
For the purposes of
this Agreement, the relationship between Smmcola and Sellers is that of a
limited payment agent. Smmcola shall collect payments for the Seller Services,
remit payment to Seller after such payment from the user is received minus any
fees, and assist in providing refunds to users. All payments for Seller
Services may be held for a period of time to ensure proper performance of all
Seller Services before they are released to Seller. Seller agrees that as a
limited payment agent, Smmcola may accept payments from users and manage
payments or refunds for any Seller Services. Both the Sellers and Smmcola agree
that no other agency relationship is formed between Smmcola and Sellers. Except
as expressly stated otherwise, Seller agrees that it is not a partner, joint
venture, franchisee, agent, or employee of Smmcola . Seller agrees that it shall not misrepresent
its relationship with Smmcola to any third parties.
Once payment for any
Seller Services has been received and the Order has been confirmed by Seller, Smmcola
shall hold such payments for a reasonable period of time to verify payment.
Seller must complete the Seller Services as required as by each Order before
payments shall be released to the Seller’s account. After such time period,
Seller shall be issued payment in the method provided for by Smmcola . Smmcola shall deduct a service fee,
commission, processing fees and other deductions as necessary from all payments
made to Seller. Smmcola reserves the right to change and alter any fees or
commissions at any time, if Smmcola alters such commission or fee structure it
shall contact Seller. In the event of a dispute between Seller and Smmcola , Seller agrees that Smmcola may withhold all
funds until such dispute is resolved. For more information regarding Smmcola ’s fee and commission structure please contact
Smmcola at support@smmcola .com.
In order for Smmcola comply
with US tax laws, Sellers may be required to submit W-9 forms or other tax
documents. Seller agrees to comply with any requests to submit any tax
documentation, as requested by Smmcola .
Seller agrees that Smmcola cannot and will not provide Seller with any tax
advice, any such questions should be directed to Seller’s tax attorney or other
tax professional.
In the event of any
refunds to any users for a Seller’s Order, Seller agrees that we may deduct the
refund amount from any incoming payments or account balances held by Smmcola for
Seller. Additionally, Smmcola may invoice Seller for such outstanding balances
that are owed due to any refunds if the Seller account funds are insufficient.
No refunds shall be given for any enhanced services provided by Smmcola to
Seller.
From time to time, Smmcola
may place a hold (“Hold”) on a Seller’s account. Some of the reasons that we
may place a Hold on Seller’s account include but are not limited to the
following: (1) if we have reason to believe that your Seller Services or your actions
have violated this Agreement, may harm our business, are deceptive, misleading,
unlawful, or have harmed a third party or interfere with a third party
contractual right; (2) at the request of our payment processors; or (3) if
required in order to comply with a court order, subpoena, writ, injunction, or
as otherwise required under applicable laws and regulations. If you have
questions about a Hold we may have placed on your Campaign account, or need
information about how to resolve the Hold, please contact us. Additionally, we
may suspend Seller’s access to the Platform or the offering of any Seller
Services while such Hold is in place.
Where Seller has not
accessed his or her user account for a period of six (6) months or more, Smmcola
may suspend, make inactive, or otherwise archive Seller’s account (“Inactive
Account”). If Seller wishes to reactivate the Inactive Account they must
contact Smmcola at support@smmcola .com.
Please be aware that any re-activation of a Seller’s Inactive Account may incur
a one time re-activation fee.
Where a Seller has an
Inactive Account, that account may be assessed a maintenance fee (“Maintenance
Fee”) of up to five (5) dollars per month. Such Maintenance Fee shall be
deducted from Seller’s account balance until all funds have been exhausted. If
Seller’s wishes to re-activate an Inactive Account that has a negative balance,
the Seller must pay all such Maintenance Fees owed before the Inactive Account
is reactivated.
Unless otherwise
provided in this Agreement, in no event shall Smmcola be liable to the Seller
for any lost profits or any special, incidental, consequential, exemplary,
punitive or other indirect damages of any nature, for any reason, whether based
on breach of contract, tort (including negligence), or otherwise and whether or
not either has been advised of the possibility of such damages. UNDER NO
CIRCUMSTANCES SHALL SMMCOLA BE LIABLE TO ANY SELLER FOR AN AMOUNT GREATER THAN
THE AMOUNTS PAID BY SMMCOLA TO Seller DURING THE PRECEDING MONTH.DUE TO THE
NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, SMMCOLA CANNOT GUARANTEE
THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE
PLATFORM. WITHOUT LIMITING THE ABOVE, THE PLATFORM, SMMCOLA CONTENT AND ANY
OTHER MATERIALS PROVIDED TO SELLER ARE PROVIDED "AS IS," WITHOUT ANY
WARRANTY OF ANY KIND, AND SMMCOLA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE,
NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
ADDITIONALLY, SMMCOLA DOES NOT REPRESENT OR WARRANT (A) THAT THERE ARE NO
VIRUSES OR OTHER HARMFUL COMPONENTS ON THE PLATFORM, (B) THAT A PARTY'S
SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE
FACE OF ALL ATTACKS, OR (C) ANY INFORMATION WILL BE CORRECT, COMPLETE, OR
ACCURATE. SOME JURISDICTIONS LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO
THIS CLAUSE OR SOME PORTIONS OF THIS CLAUSE MAY NOT APPLY TO YOU.
Smmcola makes no representations and warranties whatsoever,
and disclaims any responsibility and liability, regarding the content or nature
of any Smmcola content or its Platform. Smmcola has no liability to Seller for
any Seller Services or Orders.
The following sections
48-54 apply specifically to the Smmcola Affiliate Program. As an incentive to
share the Platform with friends, Smmcola has implemented an Affiliate program;
users taking part in the Affiliate program shall be referred to as
“Affiliates”. In order to join the Smmcola Affiliate program, a user may be
required to provide additional information. We reserve the right to reject any
users who wish to join the Affiliate program. Furthermore, Smmcola reserves the
right to terminate any Affiliates at any time, at our discretion.
Payments
Once accepted into the Affiliate program, Affiliates shall be
provided with a unique link or identifier to track referrals (“Tracker”).
Affiliates are solely responsible for ensuring that the Tracker functions
properly. Referrals shall be counted by the Tracker and successful referrals
(“Qualified Referral”) shall be determined in the sole discretion of Smmcola . Smmcola agrees to pay Affiliate a referral
fee for each Qualified Referral as outlined on the Platform. Affiliates shall
be notified by Smmcola for each Qualified Referral received. In the event of a
dispute relating to any Qualified Referrals, Smmcola shall have the sole
discretion in deciding the outcome of such a dispute. During the duration of
the dispute, Smmcola shall not be required to pay the Affiliate any referral
fees. Payment shall be issued on an as requested basis but no greater than
monthly periods. Affiliate shall be paid in USD and in a manner as agreed upon
by the parties. Smmcola shall not be responsible to pay Affiliate any referral
fees, where such referral fees have been earned on the accounts of any users
who have failed to sign up or follow the necessary procedures.
Additional
Guidelines for Affiliates
Affiliate agrees that it may not bind Smmcola and shall not
misrepresent its relationship with Smmcola . Furthermore, Affiliates may not:
We may suspend or terminate your Affiliate
account immediately, if you violate any of these guidelines or at our
discretion.
Upon successful
registration as an Affiliate, the user shall be deemed an Affiliate for the
purposes of this Agreement. The Affiliate term shall continue indefinitely
until terminated by either party subject to this Agreement’s termination
provisions. Smmcola may terminate this Agreement at any time and for any reason
by giving written notice via email or the Platform to the Affiliate. Affiliate
may terminate this Agreement by providing written notice to Smmcola via the
Platform or via email. Please be aware that upon termination by Affiliate, any
outstanding payments owed to Affiliate shall be forfeited.
Affiliate agrees to
pay and withhold all taxes as required by their local laws and jurisdictions.
In some instances Smmcola may withhold taxes for Affiliate. However, Affiliate
agrees that Smmcola is not required to, cannot, and will not provide Affiliate
with any tax or legal advice.
Smmcola actively
monitors traffic for deceptive or fraudulent activity. If deception or fraud is
detected as determined in Smmcola 's
sole discretion, Affiliate's account will be made inactive pending further
investigation. After determining that Affiliate has participated in fraudulent
or deceptive activity, Smmcola may terminate Affiliate’s account and Affiliate
shall not be entitled to any compensation that is owed but unpaid.
Unless otherwise
provided in this Agreement, in no event shall Smmcola be liable to the
Affiliate for any lost profits or any special, incidental, consequential,
exemplary, punitive or other indirect damages of any nature, for any reason,
whether based on breach of contract, tort (including negligence), or otherwise
and whether or not either has been advised of the possibility of such damages.
UNDER NO CIRCUMSTANCES SHALL SMMCOLA BE LIABLE TO ANY AFFILIATE FOR AN AMOUNT
GREATER THAN THE AMOUNTS PAID BY SMMCOLA TO AFFILIATE DURING THE PRECEDING
MONTH. DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, SMMCOLA CANNOT
GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE
REGARDING THE PLATFORM. WITHOUT LIMITING THE ABOVE, THE PLATFORM, SMMCOLA CONTENT
AND ANY OTHER MATERIALS PROVIDED TO AFFILIATE ARE PROVIDED "AS IS,"
WITHOUT ANY WARRANTY OF ANY KIND, AND SMMCOLA MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
ADDITIONALLY, SMMCOLA DOES NOT REPRESENT OR WARRANT (A) THAT THERE ARE NO
VIRUSES OR OTHER HARMFUL COMPONENTS ON THE PLATFORM, (B) THAT A PARTY'S
SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE
FACE OF ALL ATTACKS, OR (C) ANY INFORMATION WILL BE CORRECT, COMPLETE, OR
ACCURATE. SOME JURISDICTIONS LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO
THIS CLAUSE OR SOME PORTIONS OF THIS CLAUSE MAY NOT APPLY TO YOU.
Smmcola makes no representations and warranties whatsoever,
and disclaims any responsibility and liability, regarding the content or nature
of any Smmcola content or its Platform. Smmcola has no liability to Affiliate
for unapproved materials, including all copy, images, URL names, and search
terms used by Affiliate.
Affiliate represents, warrants, and covenants as follows:
Affiliate agrees that Smmcola
is acting as an independent contractor in performing any services contemplated
under this Agreement and that the relationship between the Smmcola and
Affiliate shall not constitute a partnership, joint venture or agency. Neither Smmcola
nor any of Smmcola 's employees or
agents (i) is an employee, agent or legal representative of Affiliate, or (ii)
shall have any authority to represent Affiliate or to enter into any contracts
or assume any liabilities on behalf of Affiliate. Neither Affiliate nor
Affiliate’s employees or agents (i) is an employee, agent or legal
representative of Smmcola , or (ii)
shall have any authority to represent Smmcola or to enter into any contracts or
assume any liabilities on behalf of Smmcola .
In order for Smmcola comply with US tax laws, Affiliate may be required to submit W-9 forms or other tax documents. Affiliate agrees to comply with any requests to submit any tax documentation, as requested by Smmcola . Affiliate agrees that Smmcola cannot and will not provide Affiliate with any tax advice, any such questions should be directed to Seller’s tax attorney or other tax professional.