The Web site and Services are provided by Smoshe, LLC, a Louisiana liability company with a principal place of business located at 5445 Provine Place, Alexandria, Louisiana 71303.
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
1.2. Agreement to be Bound.
SECTION II: GENERAL PROVISIONS
2.1. About Us; Smoshe not Vendor; No Endorsement.
Smoshe acts as a marketplace to allow Users to buy and sell tobacco pipes and accessories. As an online marketplace provider, we do not offer for sale, provide, endorse or promote any Suppliers and/or Product(s), and we have no control over the quality, safety, morality or legality of any aspect of any Product(s) listed for sale, the truth or accuracy of the listings, the ability of Suppliers to provide items sold, the identity of any Supplier or Buyer, the ability of Buyers to pay for items purchased. We do not and cannot ensure that a Supplier or Buyer will actually complete a transaction. If you rely on any of the information provided by or on the Web site or the Mobile Application, you do so solely at your own risk. In addition to the forgoing, from time to time Smoshe may itself operate as a Supplier in which instance the forgoing disclaimers may not apply.
You acknowledge and agree that we do not sell or purchase, offer to sell or purchase, invite to sell or purchase, or make or solicit any offers except for in instances where Smoshe acts as a Supplier or otherwise makes available for purchase Smoshe-branded products through the Web site. IN ALL INSTANCES EXCEPT WHERE NOTED ON THE WEB SITE, ALL SALES ARE ADVERTISED, SOLICITED, OFFERED, ACCEPTED, MADE AND DELIVERED BY SUPPLIERS WITH WHOM A BUYER DIRECTLY CONTRACTS. AT NO TIME WILL A BUYER/SELLER RELATIONSHIP EXIST BETWEEN US EXCEPT AS EXPLICITLY NOTED ON THE WEB SITE. In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law.
2.2. Accuracy, Completeness and Timeliness of Information.
We are not responsible if information made available on the Web site or the Mobile Application is not accurate, complete or current. You acknowledge that the Web site and the Mobile Application are provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. You acknowledge further that any reliance on the Web site or the Mobile Application is at your own risk.
2.3. Errors in Web Site or the Mobile Application.
We do not warrant that any errors in the Web site or the Mobile Application will be corrected.
2.5. Modifications and Changes to the Web Site or the Mobile Application.
We may modify, add to, suspend, or delete any aspect of this Web site or the Mobile Application, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
2.6. Access to Web site or the Mobile Application.
Though we try to make the Web site and the Mobile Application available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Web site or the Mobile Application will be at all times available.
We do not warrant that your computer, tablet, and/or smartphone will be able to access and/or support the Web site or the Mobile Application.
2.7. Right of Refusal, Limitation, Discontinuation, and Termination.
We reserve the right to refuse to provide access to the Web site or the Mobile Application for any reason at any time in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit or cancel a User Account for any reason whatsoever. In the event that we make a change to or cancel an Account, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your Account was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account termination.
2.8. Prohibited Uses of Web site and the Mobile Application.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Web site or the Mobile Application: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Web site or the Mobile Application; (c) to violate any international or governmental regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Web site or the Mobile Application; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Web site or the Mobile Application. We reserve the right to terminate your use of the Web site or the Mobile Application for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
2.9. Product Warnings.
US Code 21-863 refers to ALL materials used to manufacture tobacco accessories; metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes. In specific, pipes with carburetion devices (third holes) are considered to be paraphernalia regardless of the material used to manufacture the pipe. Traditional tobacco accessories like pipes, cigar and cigarette holders and hookah/sisha pipes are not included in the list of Contemporary accessories. U.S. vs. Posters & Things (Supreme Court – 1996) upholds this code as the OBJECTIVE standard by which paraphernalia is judged. Further, it describes other relevant factors in this determination to include whether the owner is a licensed distributor or retailer of tobacco products. Ten (10) states have adopted USC 21-863 as state law, three more are in the process of adoption. All other states have either less rigorous SUBJECTIVE (intent) statutes or no law on this subject at all! All of our glass pipes conform to RTDA guidelines for bowl depth and width. By entering this Web site you acknowledge and agree that this site will only be construed and evaluated according to Louisiana law. If you use this site from other locations, you are responsible for compliance with any and all applicable local laws. We make no representations that the materials contained within this site are appropriate for locations outside Louisiana. Any and all information contained in this site, including but not limited to information related to products and services, applies only to those provided or offered in Louisiana.
Our Web site is for the purchase and sale of tobacco pipes and accessories only and shall only be used for lawful purposes. Some tobacco accessories, such as water pipes, may cause minors and those of a non-legal age to be subject to local prosecution and fines. Your legal guardians shall be solely liable for any damage resulting from any infringement of such applicable laws.
SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy. Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight. Cigarette Smoke Contains Carbon Monoxide.
SECTION III: ACCOUNTS, USE OF THE SERVICES
3.1. Online Accounts.
3.2. Transfer Prohibited.
You agree you shall not sell, trade, or transfer your Account to any other person or entity.
3.3. Account Guidelines.
The Web site and the Mobile Application may contain the ability to communicate with other Users on one or more platforms, comments sections, discussion forums, Web sites, landing pages, social media outlets, sales channels, and/or other interactive features, (hereinafter “Interactive Areas,”) in which Users and Third Parties may communicate. By participating in Interactive Areas, you agree and acknowledge that you:
3.4. Rights in Submissions.
Should you submit, display, publish or otherwise post any content to an Interactive Area, (hereinafter “Submissions,”) you agree to grant to us and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such Submissions in any and all media now known or hereinafter developed for hosting, indexing, caching, distributing, tagging, marketing, and for all other lawful purposes without the requirement to make payment to or seek permission from you or to any Third Party.
You represent and warrant that you own or have a valid license to use any and all Submissions and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Submissions does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
3.5. Right to Monitor.
We shall have the right to monitor your Account in our sole and exclusive discretion.
3.5. Verification of Users.
All Users wishing to participate in the buying or selling of any Product shall be required to verify their identities to the satisfaction of our escrow service. This may include but is not limited to providing proof of identity (such as via a passport or other photo-bearing piece of identification) and residence (such as via a current utility bill.) Smoshe does not bear any responsibility and cannot be held liable for the verification or non-verification of a User’s identity.
4.1. Unauthorized Business.
In addition to the forgoing prohibited uses, our Mobile Application and the Web site may not be used by a Supplier to cause us to sell on his, her, or its behalf any of the following Products and/or services, (hereinafter “Unauthorized Business:”) (a) sale of adult goods or services; (b) sale of products or services in the following sectors: gambling, securities, insurance, pharmacy, drugs, arms and weapons or other highly-regulated sectors; or (c) for sales of illegal goods or services, which shall include but not be limited to illegal software or illegal downloads such as music, films, or games.
4.2. Liability for Chargebacks; Revocations; Refunds.
Supplier shall be solely responsible for refunds, chargebacks, revocations, reversible payments or payments that are fraudulent or otherwise unauthorized, and we shall have the right to collect from Supplier any and all fees associated therewith.
4.3. Compliance with all Terms of Sale.
All sales shall be binding. Supplier agrees and acknowledges that he, she or it, and not us, shall be solely responsible for delivery of any and all purchased Products to Buyers and that a contract for sale arises at the point where a Buyer utilizes the Web site or the Mobile Application to purchase a Product(s). Every sale shall be subject to the laws applicable, but there shall not be implied any right that is not a legal right and that is not set down in these Terms. Suppliers shall be obligated to ship the Product(s) ordered or otherwise complete the transaction with the Buyer in a prompt manner.
4.4. Supplier Warranties; Restrictions.
In addition to the Unauthorized Business and Prohibited Use of the Web site and the Mobile Application set forth herein, Supplier warrants that any and all Product(s) sold to Buyers (a) are not: illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to any Third Party; (b) have not been identified by the U.S. Consumer Products Safety Commission and any other regulations set forth by the countries of Supplier and Buyer/Renter as hazardous to consumers and, therefore, are not Product(s) subject to a recall; (c) are not counterfeit; (d) do not offend against the law of any country whose citizens might purchase the Product(s); (e) do not violate the rules and regulations promulgated by the U.S. Food and Drug Administration (“FDA”) related to the sales of tobacco products, specifically, that Supplier shall not sell or advertise for sale cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, cigars, hookah and pipe tobacco, e-cigarettes and other electronic nicotine delivery systems (“ENDS,”) nicotine gels, or dissolvables; and (f) does not sale or market any Product for sale as being used for illegal substances. Supplier warrants further that he, she, or it owns all copyrights, trademarks and other intellectual property related to any Product(s) sold via the Web site and the Mobile Application, or that Supplier has the permission of the intellectual property rights holder (a) to place the Product(s) into the stream of commerce; (b) to receive the net proceeds of such sales as arise; and (c) to defend the intellectual property in the Product(s). Finally, Supplier warrants and represents that he, she, or it has all licenses and authorizations required for performance of these Terms. Upon our request, Supplier shall provide us with sufficient documentary evidence of such authorization or waiver. We are not obliged to require such documentary evidence, and the fact that we have not requested such documentary evidence shall not be deemed in any way as a statement as to whether or not such authorization or waiver is required.
Furthermore, it is illegal to use drug paraphernalia slang when referring to Products available for sale via the Web site.
Any and all governmental employees, agencies, and/or agents must identify themselves to us upon their entering the Web site, and when ordering any products from the Web site.
4.5. Listing Description.
By listing a Product(s) for sale Supplier must accurately describe the Product(s) and all terms of sale. Supplier’s listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that Product and must be listed in an appropriate category with appropriate tags. If the “in stock” quantity is more than one (1), all Product(s) in that listing must be identical.
4.6. Fee Avoidance Prohibited; Accurate Shipping Fees Required.
The purchase price stated in each Product listing must be an accurate representation of the sale price and shall not fall below any Manufacturer’s Suggested Retail Price, (“MSRP,”) and/or Minimum Advertising Price, (“MAP,”) policy to which the Supplier is bound. Suppliers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the Product(s). Suppliers may not charge excessive shipping fees or otherwise avoid fees, and any shipping fees charged shall not exceed the true and accurate shipping costs of the Product(s). Suppliers may not alter Product prices after a sale for the purpose of avoiding any associated transaction fee(s), misrepresent the shipping location of any Product(s), or use another Supplier’s Account without our express, written permission.
4.7. Ethical Selling Tactics Required.
Suppliers shall utilize ethical selling tactics when promoting any and all Product(s), including refraining from the making of false and/or misleading statements regarding the Product(s) and/or Supplier. Suppliers expressly agree to conduct themselves at all times in an ethical, moral, and lawful manner.
4.8. Compliance with Law.
In addition to the other requirements to comply with laws, regulations, and terms set forth herein, Suppliers agree to obey any and all local, state, and federal regulations and laws regarding solicitation and product sales.
4.9. Freedom of Promotional Methods.
Notwithstanding the forgoing, Suppliers shall be free to choose on which social media platforms and through such other mediums and sales channels they promote the Product(s), including the ability to choose his, her, or its own operation means, methods, locations, and hours.
4.10. Right of Refusal.
Supplier may refuse to sell a Product to any User for any or no reason whatsoever so long as such a refusal does not violate federal, state, or local laws or any other rule or regulation.
4.11. Policies, Terms of Sale Required.
SECTION V: SERVICE FEES FOR SUPPLIERS
5.1. Free Trial.
From time to time, we may offer, in our sole and exclusive discretion, a one- (1-) time, thirty (30) calendar day free trial to Suppliers wishing to test out our premium seller account offering. In the event a User does not register for premium plan prior to the end of the free trial period, all Supplier data will be deleted at the end of the free trial period. Supplier are eligible to receive one (1) free trial per lifetime. In the event a Supplier provides billing information at the time of registration for a free trial, Supplier understands and agrees that Supplier shall be automatically billed the entire Service Fee associated with the premium account on the first (1st) calendar day following the end of the free trial period unless Supplier cancels such free trial prior to the end of the free trial period.
5.2. Service Fees for Suppliers.
Use of the Web site and the Mobile Application is free; however, Suppliers who wish to register as sellers on the Web site and thereby take advantage of reduced transactions costs shall be required to pay a monthly service fee as set forth at all times on the Web site and the Mobile Application as well as at the point of sale (hereinafter the “Service Fee.”) Such Service Fees shall be subject to change without notice in our sole and exclusive discretion. Such Service Fees shall not be refundable to Supplier, for any reason whatsoever, including in the instance Supplier shall have to refund a purchase to a Buyer.
5.3. Transaction Fees.
All sales made via the Services shall be subject to a per-purchase Transaction Fee, which shall be expressed as a percentage of the Product purchase price and which shall be set forth at all times on the Web site and the Mobile Application as well as at the point of sale and/or listing, as applicable. Suppliers with premium accounts may qualify for lowered Transaction Fees. In the event a Supplier wishes to optimize a listing, such as by placing it higher on the search page, a higher Transaction Fee may apply.
5.4. Chargebacks; Revocations; Refunds.
If, in a given month, an unreasonable amount of Buyer complaints are made about the quality of Supplier’s Product(s), including but not limited to (a) non-delivery of orders, (b) erroneous or non-working Products, (c) improper description of Product(s), and/or (e) non-responsive customer support of Supplier, we reserve the right to charge an amount of Thirty U.S. Dollars and No/Cents ($30.00) per such incident of Buyer complaint related to the Product(s) for the rest of that month, (hereinafter an “Extra Charge.”) “Unreasonable amount of Buyer complaints about the quality of the Supplier’s Product(s)” shall mean that in any period of one (1) month more than three (3) Buyers complain about the quality of Supplier’s Product(s). We shall, without delay, give notice to Supplier of the fact that the conditions for an Extra Charge are fulfilled and that we shall be charging the Extra Charge for the rest of that month, and provide documentation on the fulfillment of the conditions for an Extra Charge to Supplier.
5.6. Withholding of Funds.
Where we, in our reasonable opinion, are required to do so by law, we reserve the right to withhold funds for Product sales that we reasonably deem suspicious with regard to money laundering, Unauthorized Business, fraud or other illegal activities or in case of any other chargebacks or revocations.
When you create your Account, you shall have the opportunity to designate a deposit account into which you wish to be paid out. Once funds for the purchase have cleared our payment processor, they shall be available for withdraw to your designated deposit account less any fees.
You may view all pending transactions, settlement data, fees, and revenues via your Account. Except as required by law, you shall remain solely and exclusively responsible for retaining permanent records of all transactions processed via our Service(s).
5.8. Responsibility for Accurate Pay Out Information.
You agree to provide current, complete and accurate deposit account information for payout. You agree to promptly update your account and other information, including your address, email address and bank account information, so that we can complete your transactions and contact you as needed.
5.9. Payout Schedule.
Funds shall be available for withdraw to your designated deposit account once they are cleared from the escrow services. Generally, funds shall be available for withdraw fifteen (15) calendar days from the date of the transaction; however, this may, from time-to-time, take longer than average. We are not responsible and accept no liability for any delay of payment. To inquire about a payout schedule for any particular transaction, please contact Customer Support (email@example.com).
5.10. Right to Set-Off; Collection Rights.
We are entitled to set-off any and all claims against amounts payable to Supplier. In addition, to the maximum extent provided by law, we may collect any and all obligations due and owing by you to us by deducting them from your pending transactions in the deposit account. Fees shall be assessed at the time of transaction processing and will be deducted from the funds received. Your failure to pay all amounts due and owning shall be deemed an immediate breach of this Agreement for which you will be liable. You further agree to pay all fees and costs, including but not limited to attorneys’ fees and costs, incurred by or on our behalf arising from or related to the collection of any unpaid obligations by you.
5.11. Payment of Taxes.
Suppliers shall be responsible for paying any and all taxes applicable to any sales of items facilitated by the Web site or the Mobile Application, excluding any taxes on Smoshe’s own net income.
Service Fees shall not be refundable unless Supplier contacts us within the first twenty-four (24) hours after Account registration at firstname.lastname@example.org.
SECTION VI: TERMS OF SALE
6.1. Sale Prices.
The prices and the terms of payment for Products are displayed at all times on the Web site, including at the point of purchase. The prices quoted on the Web site for the Products do not include shipping and handling, unless indicated otherwise, or sales taxes, if applicable, which will be added to the final purchase price after the purchaser enters his or her details. Purchasers are responsible for the payment of any shipping and handling charges, unless indicated otherwise, as well as local VAT and/or other taxes that may apply to an order.
6.2. Delivery; Import.
Buyer is responsible for selecting Buyer’s preferred delivery method and carrier at the point of purchase from those methods offered by Supplier.
Some jurisdictions may stop the import of tobacco pipes and accessories at the border. Buyer is responsible for knowing Buyer’s own import controls and legalities. In no event shall a refund be issued in the event a Product is stopped by customs or otherwise detained or seized.
6.3. Payment Method.
Purchases for such Products may be made using Authorize.net payment gateway system.
6.4. Refunds, Exchanges.
Refunds and exchanges will be accepted if requested within thirty (30) calendar days. Items shall only be accepted for refund if unused, undamaged, and in original packaging. In the event a refund is requested based on a product defect or otherwise damaged Product, the Buyer must notify the Supplier within three (3) calendar days of the damage and may be required to supply photographs documenting such damage. All items shipped will have the option for insurance coverage based on carrier policies, however this option may not apply to the shipped item. Please take photos upon noticing that the item(s) is damaged and contact the Supplier in regards to what to do next. A restocking fee of up to fifteen percent (15%) may apply to any and all refunds. Except for in instances of “Supplier’s mistake”, such as shipping the wrong item, the buyer shall be solely responsible for payment of all return shipping and handling fees and understands further that no original shipping and handling fees shall be eligible for refund in such an instance.
SECTION VII: INTELLECTUAL PROPERTY; PRIVACY
7.1. Intellectual Property Rights Not Waived.
Furthermore, all material displayed or transmitted on this Web site and the Mobile Application, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics, (hereinafter “Materials,”) are owned by us and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Web site or the Mobile Application, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on this Web site and/or the Services for personal, non-commercial use only, provide that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed on this Web site or the Mobile Application without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to email@example.com.
You may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any Third Party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User’s personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to Smoshe or its initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independently-developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by Third Parties, or independently-developed or considered by us, shall be without obligation to you.
7.3. Grant of License.
7.4. Confidential Information of Buyers.
SECTION VIII: Third-Party Advertisements, Promotions, and Links
8.1. Third Party Advertisements and Promotions.
We may, from time to time, run advertisements and promotions from Third Parties on the Web site or the Mobile Application. Your dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of Third-Party advertisers on the Web site or the Mobile Application.
8.2. Use of Third-Party Tools.
We may provide you with access to Third-Party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional Third-Party tools.
Any use by you of optional tools offered through the Web site or the Mobile Application is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant Third-Party provider(s).
8.3. Third-Party Links.
Certain content, products and Services available via our Web site or the Mobile Application may include materials from Third-Parties.
Third-Party links on the Services may direct you to Third-Party Web sites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any Third-Party materials or Web sites and/or services, or for any other materials, products, or services of Third-Parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any Third-Party with whom you connect via the services. Please review carefully the Third-Party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding Third-Party products should be directed to the Third-Party.
SECTION IX: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
9.1. Disclaimer of Warranty; Limitation of Liability.
(A) YOU AGREE THAT USE OF THE WEB SITE AND the Mobile Application IS AT YOUR SOLE RISK. NEITHER US nor our AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE use of the Web site or the Mobile Application SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO we MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEB SITE or the Mobile Application OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(C) ALTHOUGH ALL INFORMATION AND MATERIALS CARRIED ON THE WEB SITE AND the Mobile Application ARE BELIEVED TO BE RELIABLE, WE MAKE NO REPRESENTATIONS, NEITHER EXPRESSLY NOR IMPLIEDLY, AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE WEB SITE or the Mobile Application.
(D) IN NO EVENT SHALL WE, OUR EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, AND/OR OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, personal injury or death, property damage, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE WEB SITE or the Mobile Application, ANY INTERACTIONS WITH A BUYER OR SUPPLIER, AND/OR ANY PRODUCT(S) PURCHASED VIA THE WEB SITE or the Mobile Application.
(E) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY utilizing THE WEB SITE AND THE SERVICES YOU ACKNOWLEDGE AND AGREe TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE Utilize THE WEB SITE or the Mobile Application.
(F) Smoshe’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF Smoshe’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO SMOSHE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED U.S. DOLLRS AND NO/CENTS ($100.00,) WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates and respective directors, officers, employees and agents.
You agree to defend, indemnify and hold us harmless, as well as our affiliates and vendors and respective directors, officers, Users, and agents, from and against all claims, SUITS, and expenses, including attorneys’ fees, arising out of OR RELATED TO (a) YOUR USE OF THE WEB SITE AND/OR the Mobile Application; (B) your noncompliance with or breach of this Agreement; (C) your use of third-Party SERVICES, products, links, advertisements, and/or tools; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; or (E) the unauthorized use of the Web site OR the Mobile Application by any other person using your information.
SECTION X: GOVERNING LAW; ARBITRATION
10.1. Governing Law.
These Terms shall be governed and construed in accordance with the laws of Louisiana without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the courts located in Rapides Parish County, Louisiana, and any cause of action that relates to or arises from these Terms, the Web site, or the Mobile Application must be filed therein unless subject to the binding arbitration provisions of Section 10.2, infra.
Any and all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in Rapides Parish County, Louisiana. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in the software services industry and shall include a written record of the arbitration hearing. The Parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. No claims and disputes arising under or relating to this provision may be brought by Licensee more than one (1) year after the event giving rise to the cause of action has occurred or should diligently been discovered. Notwithstanding the forgoing, the parties shall be free to bring a request for injunctive relief before a court of competent jurisdiction in the event of immediate and irreparable harm.
SECTION XI: MISCELLANEOUS
11.1. Customer Service.
Should you have any questions, comments or concerns regarding the Web site or the Mobile Application, customer service may be contacted at any time via firstname.lastname@example.org. We strive to return all customer service inquires within forty-eight (48) business hours. We may also be contacted between the hours of 8 a.m. and 8 p.m. Central Time, Monday through Friday.
11.2. Affiliate Disclosure.
We may have an affiliate relationship with Third-Parties and affiliates to whose products and/or services we link and promote through the Web site and/or the Mobile Application. Because of this relationship, we may earn a commission on products purchased by a User from a Third-Party affiliate.
Suppliers expressly recognize the valuable service provided to them by Smoshe, LLC, and, therefore, expressly agree to not-circumvent this agreement and/or otherwise seek to conduct their relationship via any means other than through the Web site or the Mobile Application for a period of four (4) years following the commencement of the Supplier/Buyer relationship. In the event this provision is breached Supplier agrees that he, she, or it shall be liable for any and all lost Service Fees for the duration of this Non-Circumvention period, calculated as the average monthly Service Fee earned by us based on the sales of Supplier’s Product(s) over a period of the previous twelve (12) months multiplied by the remaining term of the Non-Circumvention period, pro rata.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
11.6. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
11.8. Rights of Third Parties.
These Terms do not give any right to any Third Party unless explicitly stated herein.
11.9. Relationship of the Parties.
The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Smoshe, LLC, 5445 Provine Place, Alexandria, Louisiana 71303, and in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
11.12. Effective Date.