These Terms of Service ("Agreement") created by Smorgads Market Tech Inc., an Ontario corporation ("Smorgads"), covers your use of this website (collectively, the "Services").
You may use the Services only if you can form a binding contract with Smorgads, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms and Conditions, in which case the terms "YOU" or "YOUR" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms and Conditions, you must not accept this Agreement and may not use the Services.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT USE THIS WEBSITE OR THE SERVICES.
The seller must have legal rights to sell and post messaging on the media they list for sale.
The seller is responsible for ensuring that the listing price will cover their expectations around revenue, margin, any production, applicable taxes, Smorgads fee and any other costs.
All media information provided by the seller must be complete and accurate. Omissions and errors in the media description and/or disclosure may result in cancellation of the sale.
The seller is granted a 24-hour period from when the purchase occurs to decline the sale. They also agree that a sale can only be declined if the buyer contravenes any of the Smorgads terms & conditions and/or conditions stipulated in the listing. The seller would need to complete a Buyer Violation Notice that includes a detailed reason for the violation.
The seller agrees that if they request production help, through the Smorgads platform, from a 3rd party that they are responsible for any business relationship and agreements with that 3rd party.
The seller is responsible for contacting the buyer and ensuring all deadlines can be met and confirming any necessary production details that they are responsible for.
The seller is obligated to ensure that they have stipulated the correct productions specs for any material being posted.
The seller agrees to provide Smorgads and the buyer with proof of posting (i.e. an image of the media and message in situation) within 24 hours of the posting date.
The seller agrees to make good any production deficits that the buyer feels is reasonably inconsistent with the production details stated in the listing.
The seller is responsible for invoicing and/or collecting final payment for the media, less the 10% deposit that the buyer would have already paid on the Smorgads platform.
If the seller keeps the media posted beyond the in-market date of the listing they cannot charge the buyer more money unless previously agreed upon mutually by both parties.
The seller is responsible for the cost of recovery and/or return of any materials.
The buyer is obligated to pay, upon notification, for the media listing if they are the winning bidder of an auction or if they purchase a listing outright.
The highest bidder of an auction may not necessarily be the winning bidder, therefore any Bid on a listing may be considered a winning bid and the buyer would be subject to paying for the listing as per these terms.
The buyer agrees that seller is granted a 24-hour period from when the auction closes or purchase is made to decline the sale. They also agree that a sale can only be declined if the buyer contravenes any of the Smorgads terms & conditions and/or conditions stipulated in the listing.
The buyer must provide any materials by the production materials deadline stated in the listing.
The buyer must pay the seller for the remainder of the purchase price of the listing, less the deposit paid to Smorgads and adjusted for any final discounts that might later be negotiated between the seller and buyer.
The buyer is responsible for the cost of recovery and/or return of any materials as agreed with the seller.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, fully revocable license to use the Services as permitted solely by this Agreement.
Smorgads reserves all rights not expressly granted herein in the Services and the Smorgads Content (as defined below).
Smorgads may terminate your license to use the Services at any time and for any reason.
Subject to the provisions of our agreements with our third party cloud hosting providers, we will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for any planned downtime or any unavailability cause by circumstances beyond our reasonable control, including without limitation, internet service provider failures or delays, or denial of service attacks.
Subject to the provisions of our agreements with our third party cloud hosting provider, Smorgads shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your content and data. We shall not (a) modify your content and data, (b) disclose your content and data except as compelled by law or as expressly permitted in writing by you, or (c) access your content and data except to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.
You shall be responsible for full and continuous compliance with this Agreement and also use the Services only in accordance with the applicable privacy and other laws and government regulations.
You agree at all times not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots", "spiders", "offline readers", etc., to access the Services in a manner that sends more request messages to the Smorgads' or any third party servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (ix) interfering with the proper working of the Services; (x) accessing any data or content on the Services through any technology or means other than those provided or authorized by the Services; (xi) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any data or content or enforce limitations on use of the Services or the data or content therein; or (xii) uploading, transmitting, or distributing any data or content that violates any applicable laws or third party rights, including without limitation any intellectual property rights or rights of privacy or publicity.
We may, without prior notice, change the Services or stop providing the Services or any features of the Services, to you generally or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement.
This Agreement commences on the date you unconditionally accept it and continues throughout your use of the Services.
Following termination of this Agreement for any reason whatsoever, you agree to remain bound by the terms and conditions of this Agreement.
After the effective date of termination of this Agreement, we shall have no obligation to maintain any of your content or data, and unless legally prohibited, we are irrevocably authorized to delete all of your content and data in our system or otherwise in our possession or under our control.
Except for your own data and content provided to us using the Services, the Services and all materials therein or transferred thereby, including, without limitation, any software, images, text, graphics, illustrations, visual interfaces, templates, designs, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music and data (collectively, the "Smorgads Content"), and all intellectual property rights related thereto, are the sole and exclusive property of Smorgads and its licensors, if any.
Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Smorgads Content or its related intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of such Smorgads Content.
Use of the Smorgads Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You are solely responsible for all data and content that you publish, post, transmit or display on the website using the Services. You may not post, distribute, display or reproduce in any manner any copyrighted material, trademarks or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. While using the Services, you hereby grant to Smorgads an irrevocable, non-exclusive, worldwide license to use, copy, display and/or distribute any data or content posted by you on this website in connection with your use of the Services.
You agree not to post on this website in connection with the Services any data or content which:
You are solely responsible for your commercial and other interactions with other users of this website in connection with the Services and Smorgads reserves the right, but has no obligation, to monitor disputes between you and other users. Should you have any complaints about the use of the website or the Services by another user, please contact our Customer Service Department via email: firstname.lastname@example.org.
The services are provided on an "as is" and "as available" basis. Use of the services is at your own risk. To the maximum extent permitted by applicable law, the services are provided without warranties or conditions of any kind, whether express or implied, including, but not limited to, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Smorgads or through the services will create any warranty or condition not expressly stated herein. Without limiting the foregoing, Smorgads, its subsidiaries, its affiliates, and its licensors do not warrant that any Smorgads content is accurate, reliable or correct; that the services will meet your requirements; that the services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the services are free of viruses or other harmful components. Any content or data downloaded or otherwise obtained through the use of the services is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the services.
Without limiting the foregoing, Smorgads, its subsidiaries, its affiliates, and its licensors bears no responsibilities for the fulfillment and payment of any the good and services agreed to between parties.
To the maximum extent permitted by applicable law, in no event shall smorgads, its affiliates, agents, shareholders, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use, the services. Under no circumstances will smorgads be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the services or your account or the information contained therein.
To the maximum extent permitted by applicable law, Smorgads assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of your data; (ii) any unauthorized access to or use of our secure servers and/or any and all personal information and data stored therein; (iii) any interruption or cessation of transmission to or from the services; (iv) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our services by any third party; (v) any errors or omissions in any data or content or for any loss or damage incurred as a result of the use of any data or content posted, emailed, transmitted, or otherwise made available through the services; (vi) any user data or content or the defamatory, offensive, or illegal conduct of any third party or (vii) your commercial or other interactions with any other users of the website or the services. In no event shall smorgads, its affiliates, agents, shareholders, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs relating to any manner whatsover in connection with your use of this website, the use of the services or any commercial or other interactions with any other users of this website or of the services in an amount exceeding the amount, if any, you paid to smorgads hereunder in the twelve (12) months prior to the date the last cause of action arose or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if smorgads has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some jurisdictions do not allow the exclusion of implied warranties or conditions or the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary depending on jurisdiction. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
The Services are controlled and operated through various third party hosted servers located in various jurisdictions as solely determined by, and under the control of, our third party cloud hosting providers. For more information about our third party cloud hosting providers, please visit www.enciva.com. Smorgads makes no representations that the Services are appropriate or available for use in any particular locations or jurisdictions. Those who access or use the Services from jurisdictions outside Canada do so at their own risk and are entirely responsible for compliance with all applicable Canadian and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by Canada, or are a foreign person or entity blocked or denied by the Canadian government.
You agree to defend, indemnify and hold harmless Smorgads and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their shareholders, employees, contractors, agents, officers and directors, from and against any and all claims, proceedings, actions, damages, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your infringement, misappropriation or violation of any third-party rights, including without limitation, intellectual property rights or rights of privacy or publicity; (iv) any violation of any applicable law, rule or regulation by you; (v) your data and content that you submit, post, display or transmit on this website or using the Services; (vi) any other users' access or use of the Services with your unique username, password or other appropriate security code or (vii) any and all communications and interactions, whether commercial or otherwise, with any other users of this website or the Services.
Smorgads may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Smorgads in our sole discretion. Smorgads reserves the right to determine the form and means of providing notifications to you. Smorgads is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
Smorgads may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this website page periodically.
When we change the Agreement in a material manner, we may update the 'last modified' date at the bottom of this website page. Your continued use of the Services or this website after any such changes constitutes your unconditional acceptance of the new or revised Terms of Service.
If you do not agree to any of these Terms of Service or any future Terms of Service, do not use or access (or continue to use and access) the Services.
You agree that: (i) the Services shall be deemed solely based in Ontario, Canada; and (ii) the Services shall be deemed not to give rise to personal jurisdiction over Smorgads, either specific or general, in any jurisdictions other than Ontario, Canada. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and provincial courts located in Toronto, Ontario for any actions or proceedings arising under or in connection, directly or indirectly, with this Agreement.
You agree that electronic pages accessed by you on this website are written documents and that by electronically acknowledging by "clicking" any "buttons" stating "OK" or "I Accept", "proceed", "continue", "approve" or "buttons" with similar intent shall have the same legal effect as if you had placed your signature by hand and provided hardcopy versions of such pages with intent to be legally bound with Smorgads for their content. You accept any records or documents stored or produced by Smorgads through electronic means or device as sufficient evidence for all purposes to establish such documents and the contents as correct, authentic and binding on you.
YOU SHOULD PRINT OUT A HARDCOPY OF THESE TERMS AND CONDITIONS FOR YOUR RECORDS.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you for any reason, but may be assigned by Smorgads without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
This Agreement, together with any amendments, modifications and any additional agreements you may enter into with Smorgads in connection with the Services, shall constitute the entire agreement between you and Smorgads concerning the Services.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Smorgads's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
The parties have required that these Term of Service and all documents relating thereto be drawn up in the English language only.
Please contact us directly with any questions regarding this Agreement, the website or the Services at:
Smorgads Market Tech Inc.
100 Front St. East, Suite 400, Toronto, ON M5A 1E1
This Agreement was last modified on April 1, 2015.
© Copyright 2018 Smorgads Market Tech Inc. All rights reserved.