Terms of Service

Welcome and thanks for your interest in Smarketing Services by Smack Happy Design LLC (herein as “Smarketing Services”)!

Please read these Terms carefully. By signing up for a Smarketing Services account, you are agreeing to these Terms and Smarketing Services’ Privacy Policy, which will result in a legal agreement (“Agreement”) between you (the “Client”) and Smack Happy Design LLC.

Smarketing Services by Smack Happy Design LLC (“Smarketing Services,” “we,” or “us”) is an online website development and marketing service (the “Service”) offered through the URL https://smarketing.services (we’ll refer to it as the “Website”) wherein we help you create and manage your online marketing strategies, including, without limitation, websites, search engine optimization, social media, blogs, advertisements, and mailings (collectively, “Strategies”). Smarketing Services is a product built and offered by Smack Happy Design LLC, a California limited liability company. We have employees, independent contractors, and representatives (“our Team”). As a customer of the Service, or a representative of an entity that is a customer of the Service, you are a “Member” according to this Agreement (or “you”).

These Terms of Service (“Terms”) define the terms and conditions under which you are allowed to use the Service in accordance with the Agreement, and how we will treat your account while you are a Member. If you do not agree to these Terms, you may not be a Member and you must immediately discontinue your use of all Services.

Some features of the Service are offered as a la carte add-ons or monthly add-ons to your Smarketing Services account (“Add-ons”). Unless expressly stated otherwise, these Terms apply to the use of any and all Add-ons.

If you have any questions about our Terms, feel free to contact us.

ACCOUNT

1. Eligibility

In order to use the Service, you must:

  1. be at least eighteen (18) years old and able to enter into contracts;
  2. complete the registration process;
  3. agree to these Terms;
  4. provide true, complete, and up-to-date contact and billing information; and
  5. not be based in any country that is subject to a U.S. government embargo, U.S. sanctions, or that has been designated by the U.S. government as a “terrorist-supporting” country.

By using the Service, you represent and warrant that you meet all the requirements listed above, and that you will not use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.

Smarketing Services may refuse service, close accounts of any users, and change eligibility requirements at any time.

2. Term

When you sign up for the Service and agree to these Terms, the Agreement between you and Smarketing Services is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a Smarketing Services account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. While going through the checkout process, clicking the checkbox that says, “I have read and agree to the website terms and conditions” means that you’ve officially “signed” and accepted the Terms. If you sign up for the Service on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.

3. Termination

You or Smarketing Services may terminate the Agreement at any time and for any reason by terminating your Smarketing Services account or giving notice to the other party. We may suspend the Service to you at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we will refund a prorated portion of your monthly prepayment or reimburse you for unused email credits. We will not refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, like a breach or any violation of the Agreement. If your account is inactive for 24 or more months, we may terminate the account. Once your account is terminated, you acknowledge and agree that we may immediately permanently delete your account and all the data associated with it.

4. Changes

We may change any of the Terms by posting revised Terms of Use on our Website and/or by notifying you of the new Terms by sending an email to the last email address you gave us or displaying prominent notice within the Service. Unless you terminate your account within 10 days, the new Terms will be effective immediately and apply to any continued or new use of the Service. We may change the Website, the Service, Add-ons, or any features of the Service at any time, and we may discontinue the Website, the Service, Add-ons, or any features of the Service at any time. Any dispute that arose before the changes shall be governed by the Terms (including the binding individual arbitration clause) that were in place when the dispute arose.

5. Account and Password

To access most features of the Service, you must register for an account. You are responsible for keeping your account name and password confidential. You are also responsible for any account that you have access to and any activity occurring in such account (other than activity that Smarketing Services is directly responsible for that is not performed in accordance with your instructions), whether or not you authorized that activity. You will immediately notify us of any unauthorized access or use of your accounts. We are not responsible for any losses due to stolen or hacked passwords that are caused by or result from your negligence. We do not have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to access and update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.

6. Account Disputes

While we will do our best to get to know you to tailor Smarketing Services to meet your needs, we do not know the inner workings of your organization or the nature of your personal relationships. You will not request access to or information about an account that is not yours, and you will resolve any account-related disputes directly with the other party. We decide who owns an account based on the content in that account, and if multiple people or entities are identified in the content, then we will rely on the contact and profile information listed for that account. In cases where differing contact and profile information is present, we will require you to resolve the matter through proper channels outside of Smarketing Services.

When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account.

PAYMENT

7. Monthly Plans

When you sign up for a Monthly Plan, you agree to recurring billing. Billing occurs on the same day each month, based on the date that you started the Monthly Plan. Billing for Monthly Plans may be paused, and you may choose to close your account permanently at any time.

Our charges for Monthly Plans are posted on our Website and may be changed from time to time. If any part of a month is included in the Term, then payment is due for the full month. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If you go over your sending limit and reach another pricing level, then you will have to pay at the higher level on or before the next Pay Date. If the Term ends before that payment is due, you will still be required to make one payment at the higher level.

8. Pay as You Go Plans

You may buy Add-on portions of the Service instead of signing up for a Monthly Plan. This is explained on the pricing page of our Website. If you choose a Pay as You Go item, you will still be considered a Member, and other than the monthly payment requirement, all of these Terms will still apply to you. Credits for Pay as You Go accounts roll over each month and do not expire, but if your account is inactive for more than 24 months, it may be deleted.

9. Credit Cards

As long as you are a Member with a paid account or otherwise have an outstanding balance with us, you will provide us with valid credit card information and authorize us to deduct the monthly charges against that credit card. You will replace the information for any credit card that expires with information for a valid one. If your credit card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we are authorized to deduct any charges on your account against the new credit card. Anyone using a credit card represents and warrants that they are authorized to use that credit card, and that any and all charges may be billed to that credit card and will not be rejected. If we are unable to process your credit card order, we will try to contact you by email and suspend your account until your payment can be processed.

10. Refunds

We will give you a refund for a prepaid month if we stop providing the Service and terminate your account without cause. You will not be entitled to a refund from us under any other circumstances. We may, at our sole discretion, offer a refund if a Member requests one.

11. Charges for Add-Ons

If you use an Add-on that has a charge, then you will be billed that additional amount with each billing cycle for as long as the Add-on is active.

12. Delinquent Accounts

We may suspend or terminate access to the Service for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection attorney’s fees and costs.

13. Billing Changes

We may change our fees at any time by posting a new pricing structure to our Website and/or sending you a notification by email. Quoted fees do not include sales or other transaction-based taxes of any kind.

RIGHTS

14. Proprietary Rights Owned by Us

You will respect our proprietary rights in the Website and the software used to provide the Service (proprietary rights include, but are not limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property). Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism.

15. Proprietary Rights Owned by You

You represent and warrant that you either own or have permission to use all of the material, content, data, and information (including your personal information and the personal information of others) you submit to Smarketing Services in the course of using the Service (“Content”). You retain ownership of the Content that you upload to the Service. We may use or disclose your Content (including any personal information therein) only as described in these Terms, our Privacy Policy and Cookie Statement, and, if applicable, our Data Processing Addendum.

16. Third Party Services and Linked Websites

We provide tools through the Service that enable you to import and export information, including user content, to and from third party services, including but not limited to features that allow you to link your Website with an account on a third party social network service, such as Twitter or Facebook. By using one of these tools, you agree that we may transfer that information to and from the applicable third party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.

17. Third Party Software

The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.

18. Privacy Policy

Your privacy is important to us. Please read our Privacy Policy and Cookie Statement for information regarding how we collect, use, and disclose your Content and personal information and protect your privacy when you use the Service.

RULES AND ABUSE

19. Compliance with Laws

You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, EU data privacy laws (including the General Data Protection Regulation) (collectively, “EU Data Privacy Laws”), United States export control laws and regulations and economic sanctions laws and regulations (“U.S. Export Control Laws and Regulations”), or other applicable laws. If you are subject to regulations (like HIPAA) and you use the Service, then we will not be liable if the Service does not meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children’s Online Privacy Protection Act, or other laws that apply to commerce.

If you collect any personal information pertaining to a minor and store such information within your Smarketing Services account, you represent and warrant that you have obtained valid consent from the minor according to the applicable laws of the jurisdiction in which the minor lives, or that you have otherwise obtained the required parental or guardian consent according to the applicable laws of the jurisdiction in which the minor lives.

If you are located in the European Economic Area, the United Kingdom, or Switzerland (collectively, the “EEA”) and/or distribute Strategies or other Content through the Service to anyone located in the EEA (each such Member an “EEA Member”) in creating your Strategy distribution list, publishing Strategies via the Service, and/or otherwise collecting information as a result of creating or executing Strategies, you represent and warrant to Smarketing Services that:

  1. You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that satisfies the requirements of applicable data protection laws, describes your use of the Service, and includes a link to Smarketing Services’ Privacy Policy.
  2. You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to Smarketing Services and to enable such data to be lawfully collected, processed, and shared by Smarketing Services for the purposes of providing the Service or as otherwise directed by you.
  3. You will comply with all laws and regulations applicable to the Strategies sent through the Service, including those relating to (i) acquiring consents (where required) to lawfully send Strategies, (ii) the Content of Strategies, and (iii) your Strategy deployment practices.
  4. In addition, if you are an EEA Member, you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under EU Data Privacy Laws, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.
  5. You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section 16.

20. Export Controls

The software that supports the Service (the “Software”) is subject to U.S. Export Control Laws and Regulations. Export laws are set up by the government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of U.S. Export Control Laws and Regulations and any other applicable export laws and regulations (collectively, “Export Control Laws”). Therefore, you agree that you will not, directly, or indirectly through a third party, allow the Software or your Strategies to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. In addition, you certify that neither you nor any principals, officers, directors, or any person or entity you know to be directly involved with the use of the Service is designated on any U.S. government list of prohibited or restricted persons.

It is important to note that this Section 17 is not meant to provide a comprehensive summary of the Export Control Laws that govern Smarketing Services, the Service, or the Software. You are downloading and using the Software at your own risk, and it is your responsibility to consult with a legal advisor to make sure your use of the Service and the Software complies with applicable laws.

LIABILITY

21. Limitation of Liability

To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Service, including any downloads from the Website. We and our Team will not be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they are based on negligence or we have been advised of the possibility of those damages. Furthermore, in no event will Smarketing Services, or its suppliers or licensors, be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for the cost of procurement for substitute products or services or for interruption of use or loss or corruption of data. In any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.

22. Disclaimer of Warranties

To the maximum extent permitted by law, we provide the Website and the Service as-is. This means that, except as expressly stated in these Terms, we do not provide warranties, conditions, or undertakings of any kind in relation to the Website and/or Service, either express or implied. This includes, but is not limited to, warranties of merchantability and fitness for a particular purpose, which are to the fullest extent permitted by law, excluded from the Agreement. Neither Smarketing Services nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, our Services at your own discretion and risk. Since Members use the Service for a variety of reasons, we cannot guarantee that it will meet your specific needs.

23. Indemnity

You agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that are not allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (a) your Content, (b) your use of the Service, (c) your violation of any laws or regulations, (d) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (e) any misrepresentations made by you, or (f) a breach of any representations or warranties you’ve made to us.

24. Legal Fees and Expenses, and Equitable Relief

If we file an action against you claiming you breached these Terms and we prevail, we are entitled to recover all reasonable legal fees, expenses, and any damages or other relief we may be awarded. If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition. If you violate these Terms, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.

25. Disclaimers

We and our Team are not responsible for the behavior of any third parties, linked websites, or other Members.

Miscellaneous

26. Assignments

You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.

27. Choice of Law

The State of California’s laws, except for conflict of laws rules, will apply to any dispute related to the Agreement or the Service. Any dispute related to the Agreement or the Service itself will be decided by the state and federal courts in San Francisco County, California, and each party will be subject to the jurisdiction of those courts.

28. Force Majeure

We will not be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.

29. Survivability

Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.

30. Severability

If it turns out that a section of these Terms is not enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.

31. Interpretation

The headers and sidebar text are provided only to make these Terms easier to read and understand. The fact that we wrote these Terms will not affect the way the Agreement is interpreted.

32. Amendments and Waiver

Amendments or changes to the Agreement will not be effective until we post revised Terms on the Website. If we do not immediately act on a violation of these Terms, we are not giving up any rights under the Terms, and we may still act at some point.

33. No Changes in Terms at Request of Member

Because we have so many Members, we cannot change these Terms for any one Member or group.

34. Further Actions

You will provide all documents and take any actions necessary to meet your obligations under these Terms.

35. Notification of Security Breach

You are responsible for maintaining the security of your account and blog, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the blog. You must immediately notify Smarketing Services of any unauthorized uses of your blog, your account, or any other breaches of security. Smarketing Services will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

36. Notices

Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Website. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, Smack Happy Design LLC, 3150 18th Street #359, Mailbox #416, San Francisco, CA 94110, or any addresses as we may later post on the Website.

37. Entire Agreement

The Agreement and any Additional Terms you have agreed to by enabling any Add-ons make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings. Any Additional Terms will be considered incorporated into the Agreement when you activate the corresponding Add-on.

Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control to the extent of the conflict.

Thanks for taking the time to learn about Smarketing Services’ terms of service.