Terms and Conditions of UseSmarterComics, LLC

This Website (available at www.smartercomics.com) (the "Website", or "Site") is provided to you by SmarterComics, LLC ("SmarterComics", "we" or "us").  To assist you in using our Website, and to explain the relationship arising from your use of our Site and the information offered through it, we have created: (i) these Terms and Conditions of Use (the "Terms of Use" or "Terms"); and (ii) a Privacy Policy.  Our Privacy Policy (the "Privacy Policy" or "Policy") explains how we treat information you provide to us through the Site.  These Terms govern your use of our Site.  Both our Terms and Privacy Policy apply to: (a) visitors to our Site; (b) anyone licensing SmarterComics Website Comics offered on our Site; and (c) SmarterComics Members (collectively, "you", "your", or "user").  These Terms apply only to your use of the Website, and receipt of information or other materials through the Site.  These Terms do not apply to goods, services or information that you obtain from SmarterComics through other means.

PLEASE READ THIS DOCUMENT CAREFULLY BEFORE YOU USE OUR SITE.  BY USING THE WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, PLEASE DO NOT USE OUR SITE.

1. Your Agreement.

   These Terms govern your use of the Website.  Please read these Terms carefully as they impose legal obligations on you and us.  By using the Website you consent to these Terms.  In addition, for certain activities on the Site, we may further confirm your consent to these Terms by asking you to click an "I accept" button referring to these Terms.  

2. Obtaining a Password; Use of Your Password.

   We may make certain areas of our Site and access to SmarterComics Website Comics you have licensed from us accessible only to users that have a user id and password.  If we do so, and if you obtain a user id and password, please keep in mind that we will treat anyone who uses your user id and password as "you."  We will provide this user with all of the rights and privileges that we provide to you, and we will hold you responsible for the activities of a person using your user id and password.  We therefore recommend that you maintain your user id and password in confidence, and that you refrain from disclosing this information to anyone who might "pretend" to be you with respect to your use of our Website.  We also recommend that you notify us immediately if you suspect that someone is using your user id and password in this manner.

3. Grant of Rights to You.
   1. Grant of Rights in SmarterComics Website Comics.  In consideration of your payment of the Access Fee, SmarterComics, under its intellectual property rights, hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable right to access each SmarterComics Website Comic for which you paid the applicable Access Fee, solely for your personal, non-commercial use, and for so long as the SmarterComics Website Comic is available on our Site.  By way of clarification, and not limitation, the rights granted to you pursuant to this Section 3.1 (Grant of Rights in SmarterComics Website Comics) do not include the right to copy, modify, distribute, sublicense or otherwise share SmarterComics Website Comics with others.  You acknowledge and agree that we may include technology on our website to enforce the license restrictions related to the SmarterComics Website Comics and that you shall not modify, disable, circumvent, avoid, bypass or otherwise interfere with this technology.
   2. Grant or Rights in Website Materials.  Based on your agreement to comply with these Terms, we grant you the right to access and use all publicly available and, if expressly authorized, password protected areas of our Website: (a) solely for your personal, non-commercial use; and (b) in order to: (i) learn more about SmarterComics and the products and services that we offer; (ii) use the sample materials made available under the "press/media" section of our Site, solely under the terms set out in that section; (iii) download and print pages from our Website; and (iv) receive our Newsletters (collectively, the "Permitted Purposes").  For example, you may not disseminate a user review on our Site or a photograph contained in one of our Newsletters along with the material that you distribute to third parties.  Apart from using the Site for the Permitted Purposes, you may not use, copy, modify, or distribute our Website or Newsletters (or pages or content from our Site or Newsletters).
   3. Exclusions.  You can access and obtain Third-Party SmarterComics Comics from third parties using links to third-party websites included on our Website.  You acknowledge and agree that the rights granted to you with respect to Third-Party SmarterComics Comics are governed by the agreement between you and those third parties, and that these Terms are not applicable to Third-Party SmarterComics Comics that you obtain from any third party.  You further acknowledge and agree that SmarterComics has no responsibility or liability whatsoever in connection with Third-Party SmarterComics Comics that you obtain from third parties or third-party websites, regardless of whether you accessed the third-party website through a link contained on our Website.
   4. No Implied Licenses.  Any licenses granted under these Terms must be expressly provided herein, and there shall be no licenses or rights implied pursuant to these Terms, based on any course of conduct, or other construction or interpretation thereof.  All rights and licenses not expressly granted are reserved.
4. SmarterComics Ownership; Reservation of Rights.

   All information, SmarterComics Website Comics, software, artwork, text, video, audio, pictures, logos, and other content on the Website or embodied in our programs and services, including all associated intellectual property rights, is the property of SmarterComics and its licensors, or is used under principles of fair use.  SmarterComics retains all rights with respect to the Website and the SmarterComics Website Comics except those expressly granted to you in Section 3 (Grant of Rights to You).

5. Submitted Content.

   For purposes of these Terms, the term "Submitted Content" means information you submit to our Site.  This information includes, but is not limited to: (i) reviews; (ii) feedback you provide to us through our Site; (iii) questions or comments that you submit to us; and (iv) any other information you provide to us.  Submitted Content excludes Personal Information, as set out in our Privacy Policy, except where you include such Personal Information within material that you wish to have posted on our Site or included in our Newsletters.

   1. Grant of Rights in Submitted Content; Requisite Permissions for Providing Submitted Content.

      If you provide Submitted Content to our Website, by electronic mail or otherwise, we will treat the Submitted Content as non-confidential and non-proprietary to you.  By providing Submitted Content (if such feature is available to you), you authorize us to use it in any manner and to allow others to use, distribute, modify, and copy the Submitted Content, without compensation to you and for so long as we deem warranted (collectively, the "Use Rights").  

      Moreover, by providing us with Submitted Content, you represent and warrant that you have sufficient authority and right to use the Submitted Content, and to grant us the Use Rights.  For example, by providing us with a photograph to be included in a Newsletter, you represent and warrant that you have obtained all necessary permissions to have us include this photograph in our Newsletters.

   2. Submitted Content that Contains Personal Information.

      Submitted Content that you provide to us for posting on the Website or inclusion in our Newsletters will, once posted or included, be publicly available to anyone accessing our Site or receiving our Newsletters.  Although we may review Submitted Content prior to using it, we make no representations or warranties regarding any Submitted Content or our review of said Submitted Content.  In addition, any Personal Information that is included in Submitted Content will be treated as public Submitted Content and is expressly excluded from the definition of "Personal Information" as set forth in our Privacy Policy.  For example, if you include your name and address in a comic review, this information will be publicly available and will no longer qualify as Personal Information.  As such, please use discretion when including Personal Information and other details in the Submitted Content that you provide to us.  

   3. Right to Decline Submitted Content.

      We expressly reserve the right to refuse to use (or to disable or remove) any Submitted Content that we conclude, in our sole discretion, violates these Terms or our Privacy Policy, or is incompatible with the purposes of our Website.

6. Code of Conduct.

   By using our Website, you agree to comply with these Terms, and to follow our Code of Conduct, which is set out below.  Under this Code, you will not:

   • Use the Website in a manner that could disable, overburden, or impair the Site or interfere with any other parties' use and enjoyment of the Site.
   • Seek to obtain access, through "hacking," "scraping," or other means, to material or information that we have not intentionally made available to you on the Website. 
   • Submit material that is intentionally false, defamatory, unlawfully threatening, unlawfully harassing, or offensive.
   • Transmit material through the Site that you know or should know contains viruses, Trojan horses, worms, time bombs, cancelbots, or other computer-programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information. 
7. Revocation or Suspension of Use Privileges.

   We reserve the right at any time to terminate or suspend your use of some or all of the Website if you engage in activities that we conclude, in our discretion, breach our Code of Conduct or otherwise violate these Terms or our Privacy Policy.  

8. Links to Third-Party Sites.

   Our Website and our Newsletters may contain links or references to other websites.  We have no control over these other sites or their content and do not assume responsibility or liability for any content, opinions, or material available on them including, but not limited to, Third-Party SmarterComics Comics.  We do not endorse the content of any third-party site, nor do we warrant that a third-party site will be free of computer viruses or other harmful code that can impact your computer or other web-access device.  If you link to any third-party site through our Site or our Newsletters, please be aware that you are doing so at your own risk.  We encourage you to review any third-party website's terms of use and privacy policy as those, and not our Terms and Privacy Policy, will be applicable to your use of their site and any information that they collect.  By way of example, and not limitation, if you license a SmarterComics Website Comic through our Site and are directed to our Payment Processor to complete your order, the handling of the information you provide to the Payment Processor is governed by the Payment Processor's terms of use and privacy policy, and not our Terms of Use and Privacy Policy.

9. Disclaimer of Endorsements; Information Accuracy.

   The information made available on our Site or through our Newsletters is made without any endorsement of any kind by SmarterComics.  For example, a user review of one of the comics promoted on our Site does not, and should not, be interpreted as an endorsement of said comic by SmarterComics.  In addition, while we may review information before it is included on our Site or in our Newsletters, we do not undertake to validate the accuracy and timeliness of this information.  We generally provide sources for the information that appears on the Site or in our Newsletters.  If you have questions concerning the accuracy, timeliness, or completeness of the information on our Site or in our Newsletters, we encourage you to contact the source of that information directly.

10. Warranty Disclaimer.
    1. Exclusive Remedy for SmarterComics Website Comics.  We agree to engage a reputable Payment Processor to process the Access Fee for SmarterComics Website Comics.  If we do so, and if you do not receive access to the applicable SmarterComics Website Comic or are unsatisfied with the applicable SmarterComics Website Comic, we will make a reasonable effort to have the Payment Processor refund amounts you paid to the Payment Processor; provided, however, that you request a refund within fourteen (14) days from the date of your payment for a applicable SmarterComics Website Comic (the "Refund Period").  You acknowledge and agree that the remedy set out in this Section 10.1 (Exclusive Remedy for SmarterComics Website Comics) is the sole and exclusive remedy for any breach of our obligations under this Section 10.1 (Exclusive Remedy for SmarterComics Website Comics), and that, except for obtaining a refund during the Refund Period, all Access Fees paid by you are non-refundable.
    2. Disclaimer of All Other Warranties.  We do not promise that the Website, SmarterComics Website Comics, or Newsletters will be error-free or uninterrupted, or that the services and features offered on the Site or through the Newsletters will be provided error-free, uninterrupted or without inaccuracies.  The Site, and all of the information, SmarterComics Website Comics and services on the Site and in our Newsletters is provided on an "AS IS" and "AS AVAILABLE" basis.  We do not warrant or represent that the Site, the SmarterComics Website Comics or files you download from the Site will be free of viruses, inaccuracies, or other harmful features.  If an error occurs on the Site or in connection with your attempt to access a SmarterComics Website Comic, you should report it to us and we may attempt to correct the error within a reasonable time.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, SmarterComics DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT with RESPECT TO THE WEBSITE, THE SMARTERCOMICS WEBSITE COMICS, THE NEWSLETTERS AND ALL WEBSITE CONTENT.  YOU EXPRESSLY AGREE THAT USE OF THE SITE (AND ALL RELATED SERVICES), THE NEWSLETTERS, THE SMARTERCOMICS WEBSITE COMICS, AND ALL WEBSITE CONTENT IS AT YOUR SOLE RISK.
11. Limitation of Liability.

    UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT, OR NEGLIGENCE, WILL SmarterComics BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT ARISE OUT OF, OR ARE RELATED TO, YOUR USE OF THE SITE, A NEWSLETTER, SMARTERCOMICS WEBSITE COMICS, THIRD-PARTY SMARTERCOMICS COMICS, OR OTHER CONTENT.  IN NO EVENT SHALL SmarterComics' AGGREGATE LIABILITY TO YOU FOR ANY LOSS, DAMAGE, OR CLAIM RELATED TO OR ARISING OUT OF THIS SITE, THE NEWSLETTERS, SMARTERCOMICS WEBSITE COMICS, THIRD-PARTY SMARTERCOMICS COMICS OR ANY SERVICES OR OTHER CONTENT YOU RECEIVE FROM SmarterComics EXCEED THE TOTAL AMOUNTS, IF ANY, ACTUALLY PAID BY YOU TO SmarterComics DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

12. Indemnity.

    You agree to defend, indemnify, and hold SmarterComics and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any liability to third parties, including reasonable attorneys' fees, arising from or related to your breach of these Terms or a claim that Submitted Content or other material that you provide to us violates rights held by a third party.

13. Contact for Alleged Copyright Infringement.

    We respect the intellectual property rights of others and require that our users do the same.  If you believe that any content available on our Site or any other activity taking place on the Site constitutes infringement of a work protected by copyright law (each, a "Work"), please notify our agent, designated under the Digital Millennium Copyright Act (17 U.S.C. § 512) (the "DMCA") to respond to such concerns, as follows:

    
    

    SmarterComics, LLC
    3263 Murray Way
    Palo Alto, CA 94303

    contact@smartercomics.com

    
    

    Your notice must comply with the DMCA.  Upon receipt of a proper notice, we will respond and proceed in accordance with the DMCA.

14. Additional Terms for Certain Services.

    We may offer certain services or other content on our Website that is subject to additional or different terms and conditions.  We will notify you if the services or other content you are using on the Website is subject to terms and conditions that differ from these Terms, and you may decline to participate in such services or use other content if you do not agree with the differing terms and conditions.

15. Modifications to These Terms.

    If we modify these Terms, then such modifications shall take effect proactively, upon your subsequent access to the Website.  Please feel free to print a copy of these Terms for your records.

16. Monitoring of Website Use.

    You acknowledge and agree that we have the right and discretion to monitor any activity and content associated with the Website.  We may investigate any reported violation of these Terms or complaints relating to the Site and take any action that we believe is appropriate (which may include, but is not limited to, issuing warnings, suspending, terminating or attaching conditions to your access to the Website).

17. Assignment.

    These Terms shall not be assignable by you, either in whole or in part.  We reserve the right to assign the rights and obligations under these Terms for any reason and in our sole discretion.

18. Definitions.  Capitalized terms have the following meanings, and additional terms are defined in context:
    1. "Access Fee" means the one-time access fee you pay via the Payment Processor to access a particular SmarterComics Website Comic available on our Website.  By way of clarification, and not limitation, the term "Access Fee" does not include payments made by you to third parties with respect to your obtaining Third-Party SmarterComics Comics.  
    2. "Aggregate Information" has the meaning set out in our Privacy Policy.
    3. "Payment Processor" has the meaning set out in our Privacy Policy.
    4. "Personal Information" has the meaning set out in our Privacy Policy. 
    5. "SmarterComics Website Comics" means those comic books in eBook format that you can access directly from our Site.
    6. "Submitted Content" is defined in Section 5 (Submitted Content).
    7. "Third-Party SmarterComics Comics" means those comic books that you obtain from websites other than our Website, regardless of whether you accessed the other website from a link included on our Website.
    8. "User", "You", or "Your" refer to: (a) visitors to our Site; (b) anyone licensing SmarterComics Website Comics offered on our Site; and (c) SmarterComics Members.
    9. "We," "Us," and "Our" refer to SmarterComics, LLC.
19. General.

    These Terms shall be governed in all respects by the laws of the State of California without giving effect to its conflicts of law provisions.  Both parties submit to the personal jurisdiction of and venue in, the state and federal courts sitting in the judicial district that includes San Francisco, California.  The parties further agree that any cause of action arising under these Terms shall exclusively be brought in such courts.  If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.  Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section.  Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.  These Terms and the terms and conditions contained herein set forth the entire understanding and agreement between you and us with respect to the subject matter hereof and supersede any prior or contemporaneous understanding, whether written or oral.

20. Translations.

    These Terms may be translated into languages other than English (collectively, "Translations").  Any communications sent by us to you shall be sent in English.  Dispute resolution procedures arising out of either these Terms or the Translations shall be conducted in English, and the English version of these Terms shall control over the Translations.

21. Survival.

    The following provisions shall survive the termination of these Terms and shall apply indefinitely:  

    Section 4        (SmarterComics Ownership; Reservation of Rights)

    Section 5        (Submitted Content)

    Section 9        (Disclaimer of Endorsements: Information Accuracy)

    Section 11      (Limitation of Liability)

    Section 12      (Indemnity)

    Section 19      (General)

    Section 21      (Survival)

22. Contact Us.

    We welcome your feedback or suggestions.  Please contact us at:

    
    

    contact@smartercomics.com

    
    

    Please refer to Section 13 (Contact for Alleged Copyright Infringement) above if you wish to contact our DMCA agent about matters related to possible copyright infringement.

23. Complete Agreement.

    These Terms must be read in conjunction with our Privacy Policy, and the provisions of our Privacy Policy are incorporated herein.  To the extent the Terms of Use conflict with the Privacy Policy, the terms of the Privacy Policy shall control.  

Effective Date: November 19, 2010.